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Family Law Update: Civil restraint orders

17 December 2018

Lyndsey Sambrooks-Wright

Written by Lyndsey Sambrooks-Wright of the Garden Court Chambers Family Team.

The case of AEY v AL [2018] EWHC 3253 (Fam) gives valuable guidance on the use of civil restraint orders and appeal procedures more generally.

This matter concerned multiple applications for permission to appeal made by the father of three girls. The father is described as having pursued litigation ‘beyond reason and almost without restraint’. Against a background of domestic violence and child abduction, the father had made myriad allegations against the mother. He had involved the children in an attempt to prove some of those allegations and an exclusion order was made against the father when he repeatedly attended the foster home of the oldest child.

Knowles J determined all seven applications as being totally without merit, setting out the procedure for determining each. An extended civil restraint order (“CRO”) was made for two years, which prevented the father from making an application in any proceedings ‘loosely related’ to the proceedings in hand without first seeking permission from Knowles J.

A CRO is distinct from an order under s91(14) Children Act 1989. In essence, a CRO ensures that any application is reviewed by a judge at the outset to decide whether it can proceed. Under Practice Direction 4B, a CRO must be considered when:

(a) an application is struck out or dismissed; and

(b) is totally without merit.

A limited CRO may be made when a party has made two or more applications which are totally without merit: the party is then prohibited from making any further applications in the same proceedings without permission. The most draconian option, a general CRO – which can be made when a party ‘persists’ in making such applications – prohibits the making of ‘any application in any court’ without permission.

Although the primary purpose of such orders is to manage the court’s resources, the welfare concerns arising from the father’s continuous litigation supported the making of a CRO. On the basis that the mother and child would suffer anxiety and distress if informed about further applications, Knowles J determined that they would not be given notice of any subsequent applications for permission.

Lyndsey Sambrooks-Wright is a member of the Garden Court Chambers Family Team.

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