Family Division President bans unlimited injunctions

Family Law|October 15th 2014

The President of the Family Division has banned the practice of issuing ex parte injunctions without a time limit.

So called ex parte orders are issued for the benefit of one party without prior notice being given to the other party. Examples include non-molestation orders, which prohibit certain actions on the part of spouses, partners, or relatives who are suspected of abusive or violent behaviour.

The Magistrates’ Association and the National Bench Chairs’ Forum (which also represents magistrates nationally) both raised concerns with Sir James Munby about ex parte non-molestation orders which are issued without a specific time limit.

The President has now issued practice guidance on this issue. He writes:

“[The magistrates] suggest that practice varies. They express the view that to grant such an order for an unlimited time is wrong in principle.”

The guidance note cites case law and relevant legal principles, before reaching agreement with the magistrates’ claim. Sir James declares:

“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.”

Read the President’s guidance here.

Author: Stowe Family Law

Comments(5)

  1. Stitchedup says:

    A step in the right direction I suppose but Munby really hasn’t gone anywhere near far enough. Non-mols should only be used to stop people from doing something they shouldn’t normally be doing…. talking to a partner/ex-partner with whom you have been in a relationship for 20 years, have children together and valuable family assets doesn’t come into the category of “doing something you shouldn’t normally be doing”. Like it or not, divorce/separation is a highly emotional time, there will be disagreements and a huge amount of insecurity about what the future holds for you, your children and indeed your assets. Putting gagging orders on people with the threat of conviction and possible imprisonment is a massive abuse of power and imho is a breach of an individuals human rights. It is perfectly natural for a person to speak, it is totally unnatural for a person not to speak. Indeed, giving the silent treatment is considered a form of abuse in itself yet the courts are prepared to impose a legally binding form of the silent treatment.

    As I’ve said before, non-mols do not stop murders….. if a person is prepared to kill they’ve gone past caring about the consequences of breaching a non-mol. Violent and/or threatening behaviour can be covered under criminal law with a proper burden of proof. We have Harassment laws to cover unwanted attention, comments that cause distress etc, which is in effect what the non-communication element of a non-mol is meant to stop…. However, having a disagreement about the selling price of the former family home, or texting a partner/ex-partner of 20 years to tell them you’re going to be late picking up the kids should not be considered harassment.

    Contrary to what some would have you believe, non-mols are not used to stop people form doing something they shouldn’t be doing, we already have laws to cover that. They are more commonly used as part of the gamesmanship of divorce and separation to get the upper hand. They are used to justify legal aid, secure occupation of the family home, custody of the children and better financial settlements. They also make it easy for perfectly decent people, men in the main, to be convicted and possible imprisoned for doing something that would in normal circumstances be perfectly legal, acceptable, reasonable behaviour. They are used as a form of entrapment at a time when a person is going through one of life’s most stressful and emotional events.

    Judges issue non-mols willy nilly, they’re simply too scarred not to issue them. Best they are banned all together or at least remove the threat of conviction for breaches that would, in normal circumstances, not be considered criminal behaviour – Have various categories of breach if you like, those that cater for minor breaches and those that cater for major breaches….. but stop convicting people for talking! How on earth is it in the best interest of a child to see a parent convicted and possibly sent to jail for talking to the other parent!! How is it in the interest of a child to see a father loose his job and ability to provide financial support to his children just because he had a disagreement with the mother about the selling price of the former family home or sent her a text letting her know that he’ll be late picking up the kids for a handover!!! Get Real Sir James Munby!!

    • Stitchedup says:

      There has been concern about the misuse and abuse of non-mols for quite some time, best to bite the bullet now and prevent further travesties/miscarriages of justice passing through our courts. For those. like myself, that have been caught up in this quagmire; finding themselves convicted for doing something that in normal circumstances would be considered perfectly legal, normal and reasonable redress is due!

  2. Stitchedup says:

    Just been reading this article:

    http://www.familylawweek.co.uk/site.aspx?i=ed30795

    I was interested to note that the author, in relation to communication, refers to “communicating in inappropriate ways”. This begs the question why many non-mols impose a blanket ban on communication resulting in people receiving convictions when talking or otherwise communicating for perfectly good reason. He then goes on to make other comments relating to behaviour that would in normal situations not be considered criminal behaviour e.g. “There is also a lack of judicial enthusiasm to follow the ASBO route of creating specific criminal offences of otherwise non-criminal behaviour. There appears to be a real suspicion of this approach, perhaps routed in the potential for ridicule later on when an offender is detained for doing something perfectly ordinary, such as going to a particular restaurant.” Exactly, so why allow it to happen??!!!

    He then goes on to say:

    “There then follows the extremely difficult question of what sort of protection should be afforded to the victim. What is it that the non-molestation orders are there to achieve: is it immediate protection only or the implementation of a framework in which the parties can operate on a day to day basis for a year, perhaps more? A blanket ban on all forms of communication and interaction between victim and perpetrator is not always realistic beyond the immediate. This is especially so when there are children involved or if the parties’ employments are linked, say through the running of the family business.” Have two children with my ex, worked for the same employer, had the same operational manager and sat in team meetings together!!!

    and finally:

    “The difficulty with the present system is that it is not well designed to accommodate anything much beyond an emergency, ‘blanket’ remedy that is suitable either for a short period of time or for those victims who want nothing to do with the perpetrator. The system works well for such applicants: there is a relatively low threshold criteria, evidence is rarely required and it is obvious what instances of behaviour can be specifically prohibited by the order. It is also in these cases where expeditious handling will rarely prove problematic. This article intends to highlight the large amount of ‘other’ cases, where what is sought is beyond the short term and in situations where a level of interaction is unavoidable, with regulation of that interaction also necessary. Whether or not lawyers per se are capable of determining the exact nature of this interaction remains to be seen, but one can envisage cases where expert opinion could and should be sought. It is also questionable whether the Family Law Act 1996 is a good tool for this more complex, longer term regulation but what other remedy do victims in such circumstances have? It is clear that these ‘other’ cases are not well catered for by the present system. It is right that the judiciary should not want to be flippant in the types of behaviour that they ultimately criminalise, but, as always, it is a balancing exercise, and the victim’s protection must be a priority. It is a dangerous game to play in such situations, given the high stakes of getting it wrong.” So we have agreement in the law society gazette that there is a low threshold criteria and evidence is rarely required, in other words these orders are dished out like smarties. They often tarnish the character of perfectly decent people who then have to live with the stigma of being labelled a violent domestic abuser and run the risk of a conviction, and possibly jail, for even the most minor of breaches… e.g.. having a disagreement about the selling price of the former family home or texting the ex to let her know he’ll be late picking up the kids….. TOTAL MADNESS!!

    The only conclusion I can come to here is that the tool, i.e. the non-mol, is not fit for purpose…. it is designed to fail!! At best it may be used in instances of stalking by strangers or short term relationships where no children or family assets are involved. If there is clear evidence of physical domestic violence then the criminal route is more appropriate. However, it is a totally inappropriate tool to use in cases of long term relationships where children and valuable family assets are involved, non-communication orders in particular should never be allowed in these circumstances.

  3. Stitchedup says:

    “There are numerous bodies that one can envisage playing a role in assisting the court in advising on the types of behaviour that would be appropriate to allow/prohibit in a given case, from charities such as Woman’s Aid, specialist units of the police and even individual experts in domestic violence.”

    How on earth can Women’s Aid be relied upon to give balanced advise???

  4. Stitchedup says:

    or advice

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