Understanding how the family courts in England and Wales respond to litigation abuse and vexatious conduct is vital for anyone involved or interested in the legal processes relating to family law. Family proceedings are emotionally charged, often involving sensitive disputes over children, finances, and relationships. While the courts aim to resolve these matters fairly and efficiently, they must also safeguard the system from misuse. Unfortunately, some individuals do exploit the legal process, either to control or distress the other party or to frustrate the administration of justice. This conduct is often referred to as litigation abuse or vexatious litigation.
This article will explore how the family court system in England and Wales seeks to identify, manage and respond to such conduct. It will outline the legal framework and mechanisms available to judges, the types of behaviour that constitute vexatious or abusive litigation, and how victims, particularly vulnerable parties, are safeguarded.
What is meant by litigation abuse and vexatious conduct?
Litigation abuse in family proceedings can take many forms. It may involve repeatedly bringing unmeritorious applications, misusing procedural rules to cause delay, filing excessive or irrelevant documentation, or making unfounded allegations. The purpose might not necessarily be to win a case but to harass the other party or perpetuate control post-separation.
Vexatious conduct is slightly broader and refers to legal action initiated maliciously and without reasonable grounds. It goes beyond mere persistence or poor judgment and crosses over into behaviour that misuses the access to justice in a way that is harmful, oppressive, or needlessly costly, either to litigants or the justice system itself.
The courts recognise that such conduct can be a continuation of domestic abuse. Coercive or controlling behaviour may continue via litigation, where the abusive party seeks to maintain power over the victim through complex, protracted or repetitive legal proceedings.
The legal framework
In family law cases in England and Wales, a number of statutory and procedural provisions exist that give courts the tools to deal with vexatious or abusive behaviour in the litigation process. Chief among these are Section 91(14) of the Children Act 1989, the Family Procedure Rules 2010 (FPR), and case law that guides judges’ discretionary power.
Section 91(14) orders are one of the strongest protective tools available. This provision allows a court to prevent a person from making further applications concerning a child without first obtaining the court’s permission. Although this may initially seem to limit access to justice, its correct application is not about punishing a party but protecting others, especially children and vulnerable parents, from the damaging effects of litigation abuse.
The FPR also enables courts to manage proceedings proactively. Rule 1.4 gives the court the duty to further the overriding objective of just and efficient resolution by actively managing cases. This includes identifying issues at an early stage, ensuring parties are on equal footing, and dealing with cases proportionately. Courts have discretion to limit cross-examination, restrict repetitive applications, or control the manner in which evidence is presented.
Recognising patterns of abuse
Judges are increasingly aware of the nuanced behaviour that constitutes litigation abuse. Rather than focusing solely on individual incidents, courts now consider broader behaviour patterns. A key example is a parent who consistently uses the court process to thwart arrangements for a child, even when there is no reasonable prospect of success. This might involve repeatedly alleging new concerns about the other parent’s competency or safety without evidence.
Courts are alert to the possibility that seemingly reasonable applications may, in reality, be motivated by improper purposes. Judges are trained to look for red flags, such as a history of failed or withdrawn applications, diffuse or shifting allegations, or the repeated need to restrain the same party.
The relevance of domestic abuse
Importantly, case law has increasingly recognised that litigation abuse may manifest as a form of domestic abuse, particularly post-separation. In Re L (A Child) [2019], the High Court acknowledged that one party’s persistent and unmeritorious applications could constitute a continuation of coercive control.
This is also reflected in statutory guidance under the Domestic Abuse Act 2021 and Practice Direction 12J of the FPR, both of which aim to ensure that courts are alert to abuse of process by perpetrators of domestic abuse. Recognising litigation abuse as part of a pattern of wider domestic abuse allows courts to take a contextual and protective approach.
Use of Section 91(14) orders
The primary statutory tool to curtail vexatious applications relating to children is Section 91(14) of the Children Act 1989. Under this provision, the court may prohibit a person from making further applications under the Children Act without prior permission. These orders are made in limited circumstances because they place a significant restriction on a person’s access to the courts. However, when used properly, they are an essential protective measure.
The leading guidance comes from Re P (Section 91(14) Guidelines) [1999], which establishes that such orders should be used with great care and only where the parent’s conduct is ‘inappropriate’ or ‘an abuse of process.’ They are not to be considered punitive, but protective.
Subsequent decisions, such as Re A (A Child) [2021], have reinforced the use of Section 91(14) in managing domestic abuse cases. These cases underscore the importance of taking a child-centred approach, focusing on the welfare implications of repeated litigation rather than the legal rights of the applicant alone.
Modern developments have shifted the perception of these orders. While they were once deemed draconian, they are now increasingly recognised as safeguarding measures. The advent of ‘barring directions’ as a tool to protect children and vulnerable adults from protracted family court proceedings reflects a broader cultural change in understanding the consequences of unrestricted litigation.
Obtaining permission after a Section 91(14) order
If a party subject to a Section 91(14) order wishes to apply for permission to bring a new application, they must file an application setting out the basis for their request. The court must be satisfied that there is a genuine and sustainable foundation for the new application. Courts may refuse permission if the application is inappropriate, has no reasonable prospect of success, or continues a pattern of abuse.
Importantly, the process balances protection and justice. It does not permanently bar a party from the court but ensures that further involvement is properly scrutinised.
Limiting cross-examination and other procedural control
The court has further tools at its disposal to prevent the misuse of process. One particularly challenging area is cross-examination in person of victims by an alleged perpetrator. Recognising the distress and potential harm this causes, the Domestic Abuse Act 2021 introduced significant changes. In particular, Section 65 prohibits such cross-examination in proceedings where domestic abuse has been established, and mandates the court to arrange an alternative questioning method.
The court can also direct that certain types of evidence or witnesses not be pursued, that time limits be strictly applied to hearings, or that repetition be curtailed, particularly where these are being manipulated to harass or exhaust the other party.
Costs orders in family proceedings
One unique feature of family law is the so-called ‘no order as to costs’ principle. Generally, parties bear their own costs, as the emphasis tends to be on reconciliation and resolution rather than adversarial victory. However, the court may make a costs order where there is litigation misconduct. Repeated or vexatious applications may attract costs consequences, especially where they were made without merit or in bad faith.
The imposition of costs is a powerful tool for disincentivising misuse of the court process. That said, courts are mindful not to unfairly burden vulnerable parties or dissuade them from seeking redress when needed.
Role of judicial continuity
Effective management of litigation abuse is aided by judicial continuity, where the same judge oversees long-running proceedings. This consistency enables the court to build a comprehensive understanding of the underlying family dynamics, recognise patterns and prevent re-litigation of previously settled issues. For families embroiled in complex disputes, judicial continuity can offer stability and decrease the risk of manipulation or misrepresentation going unnoticed.
When judicial continuity is not possible, judges rely on detailed orders, case summaries, and legal representatives to ensure context is preserved. Nevertheless, maintaining continuity wherever feasible is strongly encouraged by both practitioners and the judiciary.
Support for vulnerable parties
Family courts must tread a careful path. They must uphold the right to a fair hearing for all parties, while simultaneously protecting victims of abusive litigation. Practice Direction 3AA of the FPR addresses the participation of vulnerable persons and requires courts to identify, early on, whether a party is vulnerable due to age, disability, or abuse, and whether they need assistance to participate effectively.
Special measures may be implemented, such as screens, separate waiting rooms, or adjusted hearing formats. Where proceedings present a risk of re-traumatisation, common in vexatious cases involving domestic abuse, the court’s management of process becomes a form of safeguarding. The judicial system increasingly recognises that simply allowing a case to run its course may, in some instances, be harmful in itself.
Balancing access to justice and protection
One of the most dilemmas in addressing litigation abuse is ensuring that any restriction does not unjustly deprive a person of genuine access to justice. The courts are very alert to this ethical tension. Blanket refusals or deep scepticism of a party’s motives may result in real grievances being overlooked. Thus, judicial discretion must be both robust and proportionate.
Protective orders are not meant to silence legitimate concerns but to funnel them through a responsible and risk-managed process. A party prevented from making repeated Children Act applications, for instance, is still entitled to raise genuinely new issues through the court’s permission process.
Legal representation and the impact of litigants in person
The increase in litigants in person, those who represent themselves without a solicitor, has raised concerns about the misuse of court proceedings. Without legal guidance, some parties may inadvertently file inappropriate petitions or misinterpret procedural rights. Conversely, some may knowingly exploit the court’s deference towards unrepresented parties in order to extend a manipulative pattern of behaviour.
The court does not impose a different standard of scrutiny based on representation but may exercise additional care to ensure fairness for all parties. Where needed, the court can invite amicus curiae (friend of the court) input or appoint a legal representative for a child under Rule 16.4.
Future developments and recommendations
There are continued calls for reform to strengthen court responses to litigation abuse. Potential areas for future development include clearer statutory definitions of vexatious conduct in the family context, streamlined processes for imposing protective orders, and better data collection on the prevalence and impact of such behaviour.
There is also an appetite for tailored training of judges and professionals to identify and react to abuse not only within the home but within the legal process. Practitioners hope for standardised thresholds for Section 91(14) applications and greater support for victims subjected to repeated, emotionally draining hearings.
Courts are also increasingly looking to digital solutions to manage repeated filings, monitor procedural compliance, and screen for repeat patterns across jurisdictions. While technological assistance is no substitute for legal judgment, it offers valuable tools for early identification of potential misuse.
Conclusion
The family courts of England and Wales operate in a delicate environment. The need to resolve complex, emotional disputes is always weighed against the constraints of time, resources, and human vulnerability. Litigation abuse and vexatious conduct challenge the integrity of the justice system by turning a tool of redress into an instrument of harassment.
Thankfully, the evolving framework of case law, statutory provisions, and procedural rules show a judiciary willing and able to confront such behaviour. Through the use of protective orders, robust case management, and an increasing understanding of the interplay between domestic abuse and litigation patterns, the courts aim to protect families, particularly children and vulnerable parents, from harm.
Ultimately, justice must remain accessible but not at the expense of safety or fairness. The family court’s response to vexatious conduct is not merely a procedural concern but a reflection of how it fulfils its core mandate: protecting the best interests of those who come before it, often at the most difficult moments in their lives.