Compulsive litigants take responsibility for their actions

By Tom AtkinsonPublished 18 January 2020Updated 11 August 20265 mins read4 sections

Part of: Your First Family Court Hearing

A divorce or separation is often caused by differences in thinking or actions between the couple. Following a divorce or separation the differences in a couple may continue when matters regarding their children arise.

We have often seen parents move quickly to apply to court for a child arrangements order — the order which now decides who a child lives with and spends time with.

This guide describes the position in England and Wales.

Parents take a course of compulsive litigation regarding child matters

It is quite clear that a breakdown in a relationship and family is very emotional. Parents are often encouraged to control their emotions for the sake of their children and to limit the damage their actions could have on their children.

Despite this it is not uncommon for parents to behave unreasonably during and also after their relationship breakdown.

An example of such behaviour can be seen in the case of G (Children) [2013] EWCA Civ 1017. In this case the separated parents had agreed their children’s arrangements some years ago, and these were put into a consent order and approved by the court. However only two months later the father asked the court to reopen the case, and this second round of court dates lasted 3 years. During these proceedings the father made very serious but completely groundless allegations against the mother, which took a lot of time and resources to resolve. The father also made false and disruptive allegations about some of the professionals involved in the case.

The judge was of the opinion that the father had been using the court proceedings as a weapon to harass and intimidate the mother. The court preferred the mother’s view of what was right for the children and the court finally ordered that the father would not have face to face contact with the children. As a result of his behaviour, it barred him from making any more applications to court without permission in advance. The father appealed this decision. The court can make an order under section 91(14) of the Children Act 1989 requiring a parent to obtain the court’s permission before making further applications. Since May 2022, section 91A (inserted by the Domestic Abuse Act 2021) confirms the court may make such an order where a further application would put the child, or another individual, at risk of harm — including where repeated applications are being used to harass or control the other parent.

The court of appeal agreed with the initial decision believing the father, whose obsession with the litigation against the mother had led him completely to disregard the interests of the children. It supported the trial judge’s decision to make the father pay costs, finding that the litigation was unnecessary and without merit, and the father had abused the court process by using it as a weapon to get at the mother.

Compulsive litigants believe they are right

Most parents who turn out to be compulsive litigants are often driven by their view that they are right, and their actions are justified. This encourages them to spend time in pursuing litigation to fulfil their aims and causing other people to waste time which could be used on other areas of their life. Compulsive litigants often turn blind to the fact that they are actually doing great damage not just to others, but also to their own cause.

These actions of one party to proceedings can be seen as a total war and is not just limited to litigation. Such behaviour is often advertised by the individual on the internet through social media to try and get other people to support their cause in the belief that this may strengthen their case.

The behaviour of compulsive litigants can lead to destruction

As well as being time consuming this form of litigation is known to waste lives. Many people spend a significant part of their life in fighting unnecessarily and unreasonably for their children when in fact they could have utilised this time better to create a stable family unit.

Compulsive litigation causes significant stress and prevents parties from moving on. This sort of behaviour can often have a negative effect on children and causes damage to children who unnecessarily are dragged into the litigation war due to unreasonable behaviour of one or both of their parents.

It is therefore important that you carefully consider the result of your actions before embarking on the route of litigation by securing early legal advice.

In children cases the court does not usually order one parent to pay the other’s legal costs. However, where a parent’s conduct of the litigation has been unreasonable, the court can make a costs order against them — and repeated meritless applications are exactly the kind of conduct that can lead to one.

Parents should set their personal differences aside. Under section 1 of the Children Act 1989, the child’s welfare is the court’s paramount consideration in any decision about their upbringing.

Before most applications about children, you will normally need to attend a mediation information and assessment meeting (MIAM) unless an exemption applies. Since April 2024 the court must consider non-court dispute resolution — such as mediation — at every stage of a case, and an unreasonable failure to attempt it can be taken into account when the court decides costs. For many families, mediation resolves matters faster and with far less conflict than repeated court applications.

Consult with a family lawyers today

Speak to a family law specialist. If you are currently involved in court proceedings about your children — or the other parent has threatened repeated applications against you — our family law team can talk through your options calmly and help you decide the right next step. Call us today on 0330 094 5880 or let us call you back.

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