PRESIDENT’S GUIDANCE ON INTERIM ORDERS: HOW LAWFUL?

Guidance on making of interim orders

Sir James Munby P has issued Practice Guidance dated 13 October 2014 and entitled: Family Court – duration of ex parte (without notice) orders (the PG). It is intended to apply (para 3) to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject-matter of the proceedings or the terms of the order.

The President does not refer to the existing procedural rules – namely Family Procedure Rules 2010 Part 20 (especially r 20.4) and its Practice Direction (especially para 4) – where much of what the PG sets out is already covered; nor to the discrete sets of rules in Parts 10 and 11 which deal with domestic abuse and forced marriage protection orders. In this field reference to Lord Hoffman it essential for any practitioner National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16, [2009] 1 WLR 1405 (opinion of Lord Hoffman; but a case not touched upon by the PG). Olint and other aspects of practice under FPR 2010 Parts 10, 11, 20 and 18) are fully covered by Family Court Practice 2014.

As will be seen, it is unlikely that much of the ‘guidance’ complies with existing procedural rules. If this is so, the guidance – issued as it is by the President as an administrator (ie not as a judge) – may be unlawful.

Family Procedure Rules 2010 Part 20: interim remedies

The regulatory starting point for ‘without notice’ (ex parte was supposed to have been superseded by ‘without notice’ in 1999: adopted in family proceedings in eg r 20.4(1)) is FPR 2010 Part 20 (derived from CPR 1998 Part 25, the reason for which was fully explained in the reports which preceded CPR 1998 in the mid-1990s). The fact that any order made under Part 20 must have a return date (which answers the question at para 1 which prompted this PG) is given away by the title of Part 20: ‘Interim remedies’. If an interim order is to be continued there must be a return date.

This assertion is backed up by PD20A para 5.1(c), which covers the same ground – if more economically – as the PG. It states what an interim injunction ‘must contain’, including:

(c) if the order is made without notice to any other party, a return date for a further hearing at which the other party can be present.

Part 20 interim remedy applications proceed automatically under the FPR 2010 Part 18 procedure; though it has to be said that this could be made clearer in the rules. Thus for example, PD20A paras 2 and 3 repeats much of what is in Part 18. The PG makes reference to the need for any interim order to comply with r 18.10(3) (para 5(v)).

For domestic abuse applications (Family Law Act 1996 Part 4) FPR 2010 r 10.2 is in similar terms to r 20.4. However, Part 10 comprises a complete code which is not subject to Part 18; so that for example it is not obvious that an order under the procedure in Part 10 must comply with r 18.10. In the same way Part 11 (forced marriage protection orders: Family Law Act 1996 Part 4A) contains a complete procedural code which is outside the PG; and under r 11.8 the court is empowered to make own initiative orders which may have a direction which enables a person served to make ‘representations’ (r 11.9). Neither Parts 10 nor 11 are referred to in the PG.

The return date

It is not clear what is the basis for the PG’s assertion that the injunction must be expressed to expire at a particular time (paras 5(ii) and (iv)). In Horgan v Horgan [2002] EWCA Civ 1371 Ward LJ suggested the following (para [6]):

A better practice, in my judgment, would be to limit the time for the injunction and the power of arrest so that they remained effective for no longer than the conclusion of the return hearing.

Thus an order might state, logically, that the making of the further order by the court was to be the time for termination of the interim order (which complies with the natural meaning of ‘interim’).

Paras 6 and 7 of the PG are mutually inconsistent. The first suggests an interim order can be extended in ‘box work’; whilst the second asserts the importance of the court ensuring that the burden on the applicant to prove that the order ‘should be extended’ (para 7) is discharged.

The significance of certain aspects of the draft order (at para 8 of the PG) is not explained – especially with litigants in person in mind (eg what does para 1 mean?). In other respects the draft order does not comply with the law or is inappropriate; and it is likely that it cannot apply in relation to applications under Parts 10 and 11 (as explained above):

  • Paragraph 1 is unclear (see above)
  • Para 2 does not comply with Ward LJ’s recommendation in Horgan above
  • The period referred to in para 4 is already set out in the rules as 7 days (r 18.11(2)), which appears to be mandatory
  • In this context ‘substance of evidence’ is unclear: evidence at Part 18 applications generally is by statement
  • It is not at all clear that para 6 is permitted by the existing rules (r 18.11 says only that a person ‘may apply’; and it should be recalled, perhaps, that a party court can be asked to deal with matters by telephone or video (PD18A paras 8 and 9).

So far as the draft order does not comply with the law or with existing procedural rules and practice directions it is unlikely to be lawful and should only be followed so far as it is consistent with the rules and law.

Finally the PG seems to have been made without proper regard for such restrictions on the issue of directions and guidance of this sort contained in and explained by the Court of Appeal in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171.

David Burrows

14 October 2014

PRACTICE GUIDANCE: FAMILY COURT – DURATION OF EX PARTE (WITHOUT NOTICE) ORDERS

 

Issued by the President of the Family Division on 13 October 2014

1          The Magistrates’ Association and the National Bench Chairs’ Forum have raised with me the question of whether it is proper to grant an ex parte non-molestation injunction[1] for an unlimited period. They suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.

2          In expressing that view, the Magistrates’ Association and the National Bench Chairs’ Forum are entirely correct. To grant an ex parte (without notice) injunction for an unlimited time is wrong in principle. The practice of granting such orders for an unlimited time must stop.

3          The same principles, as set out below, apply to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subject-matter of the proceedings or the terms of the order.

4          The law is to be found 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 Civ 1412, [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).

5          The relevant principles, compliance with which is essential, are as follows:

  • An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.
  • 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).
  • The duration of the order should not normally exceed 14 days.
  • 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).
  • 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.
  • 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.

6          Experience suggests that in certain types of case, for example, non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day. In such cases the court may decide to proceed in the way suggested by Mostyn J in JM v CZ [2014] EWHC 1125 (Fam), para 13:

“the return date should be listed, say, 14 days after the initial ex parte order had been made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.”

7          Courts must remember that, whether or not the respondent attends on the return day, the respondent does not have to demonstrate that the order should not be extended. In every case the burden remains on the applicant to persuade the court that an ex parte (without notice) order should be extended.

8          To ensure compliance with these principles, it is suggested that the following form of order be used:

“1        Paragraph(s) [insert] of this order shall be effective against the respondent [insert names] once it is personally served on [him]/[her] [and/or] once [he]/[she] is made aware of the terms of this order whether by personal service or otherwise.

2          Paragraph(s) [insert] of this order shall last until [insert date and time] unless it is set aside or varied before then by an order of the court.

3          The case is listed for a further hearing in the Family Court sitting at [insert place] on [insert date] (‘the return date’), time estimate: [insert time]. At the hearing on the return date the court will reconsider the application and decide whether the order should continue. If the respondent does not attend on the date and at the time shown the court may make an order in [his]/[her] absence.

4          The respondent has the right to apply to the court at any time, and without waiting until the return date, to set aside or vary this order. [Insert if appropriate: The respondent must give [insert hours/days] [written] notice of the application to the [applicant]/[applicant’s solicitors].]

5          If the respondent intends to rely on any evidence in support of [his]/[her] application to set aside or vary this order, or intends to rely on any evidence to oppose the continuation of the order at the hearing on the return date, the substance of the evidence must be provided in writing to the [applicant]/[applicant’s solicitors] in advance.

[Add if appropriate]

6          If the respondent intends to oppose the continuation of the order on the return day [he]/[she] must notify the court [in writing or by email] no later than [insert date and time] that [he]/[she] intends to attend the hearing on the return day and to oppose the continuation of the order. If the respondent does not notify the court then the court may, if appropriate, make an order dispensing with the need for any attendance by the [applicant]/[applicant’s solicitors] on the return day and may, if appropriate, on the return day make an order extending the injunction.”

Sir James Munby PFD

13 October 2014

[1]               A non-molestation injunction is a form of personal protection order. An order made ex parte or without notice is a one-sided order made without warning.

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One thought on “PRESIDENT’S GUIDANCE ON INTERIM ORDERS: HOW LAWFUL?

  1. Pingback: WHEN IS PRACTICE GUIDANCE LAWFUL? | dbfamilylaw

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