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Without Notice And Non Molestation Order Case Law

Without Notice And Non Molestation Order Case Law

Case law listed below provides guidance regarding process and procedural fairness in without notice applications (applications to the court where the respondent is not notified of proceedings in advance of a matter being heard, and potentially, an injunctive order being made).

The first two cases listed are cited in published judgment and we provide details of the relevant paragraphs/guidance which is referred to in later judgment.

Case law is provided here for the purpose of fairness, equality in arms, and in the interest of supporting Article 6 Rights (the right to a fair hearing). The information is provided to assist unrepresented defendants in checking that the correct procedures have been followed by both the applicant and the court.

At the bottom of this page, we also provide rules in relation to applications for orders made under Part IV of the Family Law Act 1996 (concerning applications for non-molestation and occupation orders).

Guidance given by Sir James Munby in Re S (A Child) (Family Division: Without Notice Orders) [2001] ER 362.

When granting without notice injunctive relief in the Family Division, it is generally appropriate for the court to require the applicant (and, where appropriate, the applicant´s solicitors) to give undertakings (i) where proceedings have not yet been issued, to issue and serve proceedings on the respondent either by some specified time, or as soon as practicable, in the form of the draft produced to the court or otherwise as may be appropriate; (ii) where the application has been made otherwise than on sworn evidence, to cause to be sworn, filed and served on the respondent as soon as practicable an affidavit or affidavits substantially in the terms of the draft affidavit(s) produced to the court or, as the case may be, confirming the substance of what was said to the court by the applicant´s counsel or solicitors; and (iii) subject to the previous undertakings, to serve on the respondent as soon as practicable the proceedings, a sealed copy of the order, copies of the affidavits(s) and notice of the return date including details of the application to be made on the return date. Whether or not express undertakings have been given to that effect, but subject to any order to the contrary, an applicant who obtains without notice injunctive relief has an obligation to the court to carry out those steps. The applicant´s solicitor owes such an obligation both to the court and to his lay client.

A person who has given an undertaking to the court is under a plain and unqualified obligation to comply to the letter with his undertaking. Where the undertaking is to do something by a specified time, then time is of the essence. A person who finds himself unable to comply timeously with his undertaking should either apply for an extension of time before the time for compliance has expired or pass the task to someone who has available the time in which to do it. It is unacceptable, least of all for a solicitor, to put forward the burden of other work as an explanation for non-compliance.

Guidance given by Sir James Munby in W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300.

A person who sought relief ex parte, in the Family Division as elsewhere, was under a duty to make full and frank disclosure of all the material facts. Those who failed in that duty, and those who misrepresented matters to the court, exposed themselves to the very real risk of being denied interlocutory relief whether or not they had a good arguable case, or even a strong prima facie case. In every case, however, the court retained a discretion to continue or to grant interlocutory relief even if there had been non‐disclosure or worse. In the instant case, although the court had some misgivings about the way in which matters had been approached at the ex parte hearing, there had not been any wilful or culpable default, and it would be inappropriate to exercise the discretion in favour of X and against W.

In general, any ex parte order in the Family Division containing injunctions should set out on its face, either by way of recital or in a schedule, a list of all affidavits, witness statements and other evidential materials read by the judge. The applicant´s legal representatives should, whenever possible, liaise with the associate with a view to ensuring that the order as drawn contained that information. On receipt of the order from the court, those legal representatives should satisfy themselves that the order as drawn correctly set out the relevant information and, if it did not, take urgent steps to have it amended under the slip rule. They should also respond forthwith to any reasonable request from the party injuncted or his legal representatives either for copies of the material read by the judge or for information about what took place at the hearing. At the very least, if they asked, they were entitled to be told exactly what documents, bundles or other evidential materials were lodged with the court either before or during the course of the hearing, and what legal authorities were cited to the judge. It would therefore obviously be prudent for those acting for applicants in such cases to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they were unable to provide. In the instant case, it was unfortunate that the order as drawn up contained no indication of the material that had been read by the judge. That omission, and the absence of any attendance note of the proceedings, meant that X and his legal advisers had been left in the dark as to what materials had been shown to the judge. However, those matters did not go to W´s entitlement to continuing interlocutory relief.

Although a case concerning a wardship application, Theis J refers to past guidance governing applications made without notice.

She expands upon that guidance at paragraph 16 (we recommend you read the judgment in its entirety paying particular attention to paragraphs 13 to 16).

If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.

Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”

Jackson J gives the following guidance on the making of non-molestation orders.

The default position of a judge faced with a without notice application should always be “Why?”, not “Why not?” As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.

The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one‐sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.

Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non‐molestation orders. They are serious infringements of a person´s freedom of action and require specific evidence to justify them.

The power to penalise non‐compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6) with that aim.

The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome. Jackson J points out the procedural irregularities and failures in this case.

A without notice application should not have been made.
A without notice order should not have been granted on this evidence.
The order that was granted did not reflect the judge´s intention.
The orders preventing access to the street and banning direct communication were unnecessary and disproportionate.
At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here.
The date given for a contested hearing of Mrs R´s application was too distant to be meaningful.
Mr R´s request for extra time to file his statement should have been granted at the outset.
The hearing date for Mrs R´s application should not have been cancelled.
The application for relief from sanction should have been considered on paper and granted.
The date given for a contested hearing of Mr R´s application for relief from sanction was again too distant to be meaningful.
The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R´s statement.

Rules Governing Applications for non-molestation orders
In R v R (Family Court: Procedural Fairness) [2014] EWFC 48, Jackson J points out procedural irregularities in that case. When considering whether procedures have been properly followed by the court and applicant, the respondent should be aware of the following rules governing applications for non-molestation orders.

PART 10 – APPLICATIONS UNDER PART 4 OF THE FAMILY LAW ACT 1996

Rules Governing Applications for non-molestation orders
In R v R (Family Court: Procedural Fairness) [2014] EWFC 48, Jackson J points out procedural irregularities in that case. When considering whether procedures have been properly followed by the court and applicant, the respondent should be aware of the following rules governing applications for non-molestation orders.

10.3

In an application made on notice, the applicant must serve ‐
a copy of the application together with any statement in support; and
notice of any hearing or directions appointment set by the court,
on the respondent personally ‐

not less than 2 days before the hearing; or
within such period as the court may direct.
Where the applicant is acting in person, the applicant may request the court officer to serve the application on the respondent.
In an application for an occupation order under section 33, 35 or 36 of the 1996 Act1, the applicant must serve on the mortgagee and any landlord of the dwelling-house in question ‐
a copy of the application; and
notice of the right to make representations in writing or orally at any hearing.
The applicant must file a certificate of service after serving the application.
(Rule 6.23 makes provision for the different methods of serving a document and rule 6.35 provides for the court to authorise service by an alternative method.)

10.6

The applicant must, as soon as reasonably practicable, serve on the respondent personally ‐
a copy of the order; and
where the order is made without notice ‐
a copy of the application together with any statement supporting it; and
where the order is made by lay justices, a copy of the written record of the reasons for the court’s decision.
(Rule 27.2 makes provision in respect of lay justices giving written reasons in the family court.)

The court must serve the documents listed in paragraph (1) if ‐
an applicant, acting in person, so requests; or
the court made the order of its own initiative.
In an application for an occupation order under section 33, 35 or 36 of the 1996 Act, the applicant must serve a copy of any order made on the mortgagee and any landlord of the dwelling-house in question.

Costs of contact arrangements

Duty on parents to work to put aside differences

Child arrangements orders for shared living arrangements

Shared living arrangements – domestic relocation

Shared living arrangements – relocation abroad

Contact – The European Convention on Human Rights (ECHR)

Temporary Removal from Jurisdiction Case Law

Shared Living Arrangements Case Law

Section 91.14 Case Law

Reversal of Residence Case Law

Paternity Testing Case Law

Parental Alienation and Intractable Contact Dispute Case Law

Occupation Order Case Law

Without Notice And Non Molestation Order Case Law

Non Biological Parent Case Law

Leave to Remove Case Law

Jurisdiction Case Law

Interim Contact Case Law and Practice Directions

Indirect and Suspension of Contact

Internal Relocation Case Law

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