The use and abuse of ex parte injunctions

Family Law | 15 Sep 2016 15

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I recall many years ago acting for a husband in divorce proceedings who was the ‘victim’ of an ex parte injunction order that really should never have been made. There was considerably animosity between the parties who were both still residing in the matrimonial home and, as an ‘opening shot’ the wife applied for, and obtained, an ex parte injunction order requiring my client to vacate the matrimonial home (known then as an ‘ouster’ order). The order had been obtained not just without my client being given the chance to be heard but also on the flimsiest of evidence – I remember that the most serious allegation that the wife made (and the only one remotely involving violence) was that my client had pushed her on to a sofa. The case turned out well in the end, with my client being able to return to his home, but I was so annoyed that the court had made such an order that I wrote a letter about it to the journal Family Law, which they published.

For the benefit of non-lawyer readers I should just explain what an ‘ex parte’ injunction order is, in the context of domestic violence or abuse.

To start at the beginning, the general rule in English law (and, I suspect, in most, if not all, civilised legal systems) is that the respondent to any application to a court should be given the right to be heard, before the court deals with the application. This means that the respondent should be served with a copy of the application, and be given time to prepare his case before the court hears the application. Accordingly, when an application is issued the court will fix a hearing date sufficiently far in advance for these things to happen. The only exceptions to the general rule are where there is an urgent need for the court to make an order (and there is therefore no time to give notice to the respondent) or where the order is required to be made before the respondent is given notice of the application. In such cases the court may make an ‘ex parte’ order, without notice to the respondent, and without hearing from him.

Where there has been serious domestic violence the applicant may need an ex parte order. They may need it because they need urgent protection from the respondent, and they may also need it because they fear that the respondent may react violently when he or she is served with the application – the ex parte order provides them with protection, pending the hearing of the application. Ex parte orders can therefore be extremely useful, but they can also be abused.

It is obviously a serious matter for a court to make an order against a person without giving them an opportunity to be heard. There are therefore strict rules relating to the making of ex parte orders. For example, whilst a court normally has no problem making an ex parte order forbidding the respondent from molesting the applicant (which obviously they shouldn’t do anyway), a court will not normally make an ouster order ex parte, as ordering a person to leave their home is a serious step to take (this was the reason for my annoyance in the case I referred to above). The other restriction on ex parte orders relates to their duration. When a court makes an ex parte injunction order it should fix a date for a full hearing of the application (known as the ‘return date’), giving the respondent an opportunity to attend. The ex parte order will therefore only last until that hearing date. In the case Re W (Minors), however, no return date was immediately fixed

For the purposes of this post I’m not going to go into the details of Re W. Suffice to say that in it the wife applied to the Family Court for, and obtained, an ex parte non-molestation order against the husband. The order was made on 19 July last, and was expressed to last for a year. It also stated that: “this order will be considered at a further hearing on a date to be fixed by the court officer on request by the respondent.”

The order may have been left like that, but for the fact that the case subsequently went before Mr Justice Mostyn, in the High Court. As he pointed out, the order was in clear violation of the President’s Practice Guidance of 13 October 2014 entitled “Family Court – Duration of Ex Parte (Without Notice) Orders”. That guidance clearly states that the duration of ex parte orders should not normally exceed 14 days, and that they must specify the return date.

The rationale behind the guidance is as I have set out above, but bears repeating, in Mr Justice Mostyn’s own words:

“It has been stated time and again that ex parte relief of this nature must be very much the exception rather than the rule because it offends a fundamental principle of natural justice which is that judicial decisions should be made after having heard both sides.”

Quite.

Mr Justice Mostyn pointed out that the guidance has been criticised in some quarters, but he does not accept that criticism, saying that “the lower courts must faithfully adhere to the guidance until and unless it is amended by the President.” In the circumstances he directed that there should be the earliest possible return date fixed in the Central Family Court for the non-molestation injunction to be reconsidered.

The full report of Re W (Minors) can be read here.

Photo by Michelangelo Carrieri via Flickr under a Creative Commons licence.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(15)

  1. Andrew says:

    Of course an early return date is of limited value to the other party when he, usually he, will be refused legal aid – and therein lies the most obvious breach of Article 6 of them all.

    • Stitchedup says:

      An early return is also of no use if it doesn’t allow time to seek legal representation/advice and to prepare your case properly. The system is loaded from the start; the applicant effectively has the time in the world to prepare their application and no proof of abuse/violence is needed, just a statement to the effect that the applicant feels intimidated or is in fear of possible domestic abuse / violence. The bar is set very low, as the judge said to me “it’s not a high hurdle for to get over”. I had an ex-parte served on me at 20:30 on a Thursday night with the return hearing set for 10:00 Monday morning…. No time to seek legal representation/advice so I ended-up representing myself. These things are dished out like smarties in the family courts because judges are looking cover their backsides and try to justify their inept objectivity by claiming these orders doesn’t stop you from doing something you shouldn’t be doing anyway and the doesn’t affect you as long as you don’t break it…. Since has talking to a partner of 20 years, mother of your children been something you shouldn’t be doing. Also, if the respondent is doing something he shouldn’t be doing anyway, I.e something illegal, the criminal courts are the place to deal with it. Quite the contrary, non mols force men into the criminal justice system through the back door and make it easy for perfectly decent men/fathers to be convicted for something that in normal circumstances be considered criminal activity, e.g. Expressing an opinion about the selling price of the family home.

      • Stitchedup says:

        One thing that struck me is that you are guilty until proven innocent,I.e. The order is made now prove to me it shouldn’t have been made…. I was told by the judge that I would have to apply for copies of any police reports if I wanted the order removed… Surely such burden of proof should be on the applicant not the respondent??

        Most importantly however, non mols do not stop murders. If a person has got to the stage they are prepared to kill they’ve resigned themselves to the consequences of their actions and are not going to give two hoots about the fact a judge has dished out a non mol.

        • Stitchedup says:

          Apologies for the poor punctuation, missing words in the above. Using my phone and trying to hold a conversation at the same time.

        • Stitchedup says:

          Also copies of Police reports can take weeks/months to obtain so what use is an early return if you can’t provide the evidence needed to have the order set aside???

  2. Vincent McGovern says:

    Something is strange in the world, for once I find myself in agreement with John Bolch throughout. Before Mr Justice Mostyn correction and reminder there were many non mols without a return date. And effectively once a malevolent mum ( which is most certainly not all) has been in contact with the gender vigilante warriors of domestic abuse, an ex parte non mol will usually be granted with the assistance of a solicitor fishing among the same agencies. The legal aid is guaranteed after the non mol is ordered through the back door and then golden harvest time for solicitors and barristers for on average 5-10 hearings. Bogus justice and sham legality abound in secret family courts. The welfare paramountcy is a wonderful principal of convenience for ideologues and associated financial interests.

  3. JamesB says:

    There is a big difference between being heard and being listened to. I found these places don’t listen to LIPs and find anything true even when its not when they have decided what they want to happen anyway, the judges play fast and loose and call it Judges discretion and well, I, and I don’t think I am the only one have lost respect for them and establishment.

  4. Andy says:

    Here we are again..bias…in court…no wonder fathers distrust the court and the powers that be…
    On top of that,court costs with solicitor costs all ads up to a big injustice…The winners in such cases are the solicitors who just keep taking for one letter more…

    • JamesB says:

      I remember my last comment to my solicitor. I said, if you reply to threat they will just send you another letter and another and another, they said, we can’t avoid another exchange of correspondence. Gravy train for them divorce, they need to give better value for money.

      • JamesB says:

        Perhaps some do. Just I recently saw a friend of mine’s Ts and Cs who is unfortunately starting a divorce, the figure in there for the approximate cost of the divorce is £15,000 . It is not even a large amount of assets, just a house to be split 50:50 and no children involved, rip off that like most. The other familiar comment that sticks to mind if you attempt to change solicitors “how much did they say you would get? … oh, is that all, I’m sure we can get you more than that”. To be fair there are the odd good ones like Marilyn and another friend of mine, but they seem to be few and far between and add to that uncertain law and Judges discretion and you have a mess. Plus even if you get a reasonable solicitor, if the other side isn’t the bills still ratchet up.

        I also notice they listen to each other more than their clients. I said to mine no point negotiating, then they talk to the other side, waste money negotiating and then come back to me expecting me to pay, I don’t, then we go to court and I win as they went against their own ts and cs and my instructions. I instruct don’t email the other party only post, the other solicitor asks for email then my solicitor emails them. Bloody Nightmare. I do not believe mine is an exceptional case either. Plus as a NRP man unless you give everything away you are treated like scum by all involved with the one exception of the counsellor I went to in that difficult time who was a woman to prove I am not sexist..

  5. John Hemming says:

    I saw an ex parte order requested by a local authority recently which appeared to be motivated by a complaint made by the mother against the local authority staff. It is still happening.

  6. RichardN says:

    My wife obtained an ex-parte NMO on DV allegations. When I later obtained a written transcript of the ex-parte hearing and discovers that she had blatantly.lied in court I have experience the family court not being interested in dealing with the matter as a contempt of court matter but equally my local police not interested in dealing with the matter as perjury. Sir James Mundy, President of the family court in speech to the AGM of Families Need Father in Nov 2014 said “A wrongly granted ex-parte order sets the tone of proceedings thereafter” especially when the applicant for the ex-parte NMO then reports you to police for allegedly breaching the NMO. If it ia criminal offence to breach an NMO it must equally be criminal offence to get the NMO bu lying in the family court

    • Rich says:

      Herein lies the problem I suppose. I was also the victim of, amongst other things, ex-parte NMO application. Fortunately it was scuppered because I had applied for custody of our child. Nearly £40k later, having been through hell, the conclusion was that the child would have no contact with the mother other than by text.The affadavit attached to the ex-parte application was eight pages of fiction – even the details of her age were incorrect, let alone the unbelievable accusations that had been made. After this, the Police came knocking and arrested me for questioning relating to an alleged serious sexual assault. I could prove that I was 300 miles away when this supposed act took place, but still waited months for the Police to say that they weren’t going to carry on.
      The problem is, the person who made all of this up gets away without any punishment whatsoever, and they had legal aid. I was left bringing up a child, working, paying her a huge sum of money a month and going into debt to that value. And, who does it affect most? The poor kid who should have been the one that the whole system was there to protect in the first place.
      Shame on the British ‘family’ court system.

      • Richard Nixon says:

        Rich. Have you reported her to police for perjury under section 5 of the perjury act 1911 and perverting the course of justice? Richard

        • Richard says:

          It all happened about 6 yeas ago. The police asked me what I wanted to do and about nine months later after repeated calls with no response, they advised me that they would be doing nothing in a one line email. The affidavit for the ex-parte injunction was so obviously untrue, and whilst the judge asked her some very difficult questions that highlighted that, there was nothing mentioned about being dishonest.

          Had I not gone through this, I would not have believed someone if they told me this stuff could happen in the British legal system. I have lost my confidence in our legal system and our Police completely. Just glad I managed to get through it, and more importantly my daughter did. I think it’s a side of divorce that no one really cares about because I guess it’s not very common.

          I tried to go down the collaborative lawyer route, and both were, but unfortunately there was no discussion, no negotiation – nothing other than all out war and the most horrendous accusations.

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