For a family lawyer the Red Book is nothing less than a friend, a guide and indeed as is often the case when in court, asaviour. So it is of particular interest when a senior member of the judiciary, namely Mr Justice Mostyn takes issues with its content, particularly on the topic of non-molestation orders

Non-molestation orders from a legal perspective are big business. Earlier this year figures from the Ministry of Justice confirmed that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence had increased by 21 per cent, from 4,925 to 6,101, between 2012 and 2014 in England and Wales. This comes as no surprise, as following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 April 2013 the scope of services funded as part of civil legal aid radically changed. Legal aid in private law disputes has all but ceased which we know to our cost, save for where there are issues concerning domestic violence or child abuse and specific evidence fulfilling the requirements of regulation 33 or 34 of the Procedure Regulations is provided in support of this. As a consequence non-molestationorders are also the entry point for a legal application in Children Act proceedings.

The background

A non-molestation application is usually an ex parte (without notice) application to the court. It had become the practice, and to a great extent I think it still is, that at that hearing the court would make non molestation orders for a period of up to one yearor indeed unlimited periods and include a provision in the order for it to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent”. The onus being on the respondent, to bring the matter back to court if they took issue.

This however flies in the face both of natural justice and the guidance given by the President on 13 October 2014, in Practice Guidance: Family Court – Duration of Ex Parte (Without Notice) Orders where he confirmed that the practice of granting such orders for an unlimited time must stop. He reiterated that the law is set out in Horgan v Horgan [2002] EWCA Civ 1371, paras 5-6 (Ward LJ),R (Casey) v Restormel Borough Council [2007] EWHC 2554(Admin),paras 37-41 (Munby J), in Re C (A Child) (Family Proceedings: Practice) [2013] EWCA Civ1412, [2014] 1 WLR 2182, [2014] 1 FLR 1239, para 15 (Ryder LJ), and JM v CZ [2014] EWHC 1125 (Fam), paras 5-13 (Mostyn J).

The relevant principles as set out by the President, “compliance with which is essential, are as follows:

 (5)(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.

(ii) It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 4.30pm on 19 November 2014).

(iii) The duration of the order should not normally exceed 14 days.

(iv) The order must also specify the date, time and place of the hearing on the return day. It is usually convenient for this date to coincide with the expiry date of the order (eg, list the return day for 10.30am on 19 November 2014 and specify that the order expires at 4.30pm on 19 November 2014).

(v) The order (see FPR 18.10(3)) "must contain a statement of the right to make an application to set aside or vary the order under rule 18.11." The phrase "liberty to apply on 24 hours' notice" is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order.

(vi) If the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most.”

The reality appears that courts and practitioners up and down the land are simply not following this clear and cogent Guidance. This thus bring us to Mostyn J, in Re W (Minors)[2016] EWHC 2226and the note which prefaces the Guidance in the 2016 edition of the Family Court Practice (“the Red Book”) and to which he describes at para 10 of his judgment as “intemperate, disrespectful and legally wrong” and that “in effect incites the lower judiciary to ignore the Guidance and continue with the bad practices that the Guidance was intended to eradicate”.

 

So what does it say in the Red Book?

The Editorial Note in the Red Book (page 2681) states that the President’s Guidance has been criticized as unworkable in practice, imposing increased work and expense on practitioners and staff at HMCTS and increased expense on public funds, while reducing protection for victims of domestic violence. That unusually, the Judicial College has declined to promote it and it is understood that a majority of DGJs are not supporting it. It goes on to state that whilst (5)(i),(ii),(v) and (vi) are clearly correct and consistent with the longstanding commentary in this work, the difficulty is with paras 5(iii) and (iv). The problem being that if you are only granting he order for 14 days you are going to clog up the courts still more than now; the expense on the applicant (and/or public purse) of further person service on the respondent and the potential risk of leaving the applicant without protection between hearings. The Note concludes that Guidance needs to be amended particularly as the Notes says “that there is nothing wrong in law with an ex parte order that lasts 6 or 12 months provided that in all cases a full hearing is held as quickly as possible to review the order.”

As we have seen above Mostyn J takes a rather different view as to the workability of the Practice Guidance, confirming that he considers

“it to be eminently workable in practice. More importantly, I believe that it fairly balances the necessary need for protection for victims of domestic violence with the fundamental right of a litigant to be heard in a case whichconcerns him. The editorial note implicitly asserts that the specification of the normal duration of an ex parte order as 14 days in para.5 (iii) of the Guidance is ultra vires.  It states that there is no statute or rule requiring it.  That is true but it should be understood that the specification, as well as the guidance generally, derives from authorities of the Court of Appeal and the High Court.  It is for the higher courts to give guidance as to the interpretation of statutes and it is certainly within the remit of the higher courts to specify how a discretionary power in a statute is normally to be exercised.  And when the higher courts give such guidance in a decision, then that is binding on the lower courts - see the decision of the Supreme Court in Willers v Joyce No. 2 [2016] 3 WLR 534 at para.5.  Of course the normal specification of 14 days can be departed from, perhaps by a fairly long period, if the facts of the case warrant such a departure; but where the higher courts have specified a normal starting point of 14 days then that is where the lower court should start.”

He reiterated that

“In my judgment, the lower courts must faithfully adhere to the guidance until and unless it is amended by the President.  No doubt representations can be made to him by the Association of Her Majesty's District Judges, but until the Guidance is altered it must be followed.”

So where does this leave us? The Practice Guidance must be followed unless and until it is amended. A non molestation order is a draconian order which often curtails the rights of a person at a hearing where they are not in attendance and as such should be for as short a period as possible and 14 days makes sense. But inreality this is not always practical. I agree with the Editorial Note.The court system is in a mess. Too many cases; litigants in person; insufficient resources and a system creaking at the seams. The protection of the victim from a risk of domestic violence must be added to the mix and on balance the current practice of longer orders makes sense.

As such the lower judiciary should rather, than simply completing a tick box form when making non-molestation orders shall have to consider giving short judgments explaining why this case deserves a longer order in the specific circumstances of this case. This then may appease both Mostyn J and the Author of the Editorial Note.

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