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  • Please stop!

    Please stop!

    Court proceedings involving children are sometimes a painful, long and expensive process for both parents. The effect on the children can also be traumatic. Therefore, Court proceedings are best avoided wherever possible.

    If matters can only be decided by involving the Court, it is a huge relief for all concerned when the matter is closed and an Order has been agreed or made by the Court. Even though both sides may not be happy, everyone can now get on with their lives.

    Sadly, this is not always the case!

    If one parent is unhappy with the decision or wants to cause further distress to the other parent, they are free to make an application to the Court to have the Order varied. This opens up the whole process again, causes distress and means that more costs are incurred.

    What can you do if you are on the receiving end of such an application?

    Ultimately, the Court can make an Order that the person making the application be prevented from re-opening the case for a period of time. This is to stop what are known as ‘vexatious litigants’ continually making applications. However, such Orders are not made lightly and are the exception not the rule.

    The Judge would have to be persuaded that the applicant has a history of making unreasonable and repeated applications. Alternatively, the Judge could decide that even though there has not been a history of such applications, opening up the case again would not be in the best interests of the child.

    When making the decision whether or not to make an Order, the Judge must consider certain matters, which in summary are:

    • The welfare of the child is paramount
    • The Court must balance all the circumstances when exercising its discretion
    • An important consideration is that by making an Order it is restricting the right of a party to make an application relating to his or her child
    • The power must be used with great care and sparingly
    • It is a weapon of last resort
    • In some circumstances a restriction may be imposed where the welfare of the child requires it but there has not been a history of repeated applications
    • Is there a serious risk that without the restriction, the child or primary carers would be subject to unacceptable strain
    • The Court may impose a restriction even though neither party has requested one
    • A restriction may be imposed with or without a time limit
    • Any restriction should be proportionate to the harm it is intended to avoid
    • A restriction should not be made without both parties being present, unless there are exceptional circumstances

    There is, therefore, a possibility that such an application can be nipped in the bud, but it is by no means a certainty. As with all such matters, it is important to seek legal advice as soon as possible.


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