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.”
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.