27th March 2017
On 18 January 2017, the President of the Family Division issued ‘The Practice Guidance on the Duration of Ex-Parte (Without Notice) Orders’. A few months on, this article is intended to give some practical guidance as to how to approach Non-Molestation Orders in practice.
1. The duration of the Order
- The guidance from the President is clear; the duration of any ex-parte order should be no longer than is necessary to facilitate a return date.
- When making a final order, that order must be of a defined duration. As such we should no longer see the “until further order” provision, which had become common place.
- The standard length seems to be 12 months, although this will vary on a case by case basis.
2. Return date
- Historically it was dependant on the Judge hearing the matter, or the practice in a particular court; as to whether a return date was listed at the ex-parte hearing, or whether it would only be listed if requested by the respondent. However, the President is clear that a return date should be listed within 14 days in all cases.
3. No contact provisions
- It is a familiar term in a Non-Molestation Order that the respondent shall not contact the applicant, including by electronic means.
- Thought needs to be given as to whether this is appropriate if the parties have a legitimate need to communicate, for example if they have children. In some cases, there will be such a risk that the children are not having contact with the respondent. However, there may still be a need to maintain an avenue of communication, and in such circumstances a term stating “save via the applicant’s solicitors” may be appropriate.
- However, what about if the children are still seeing a respondent? It will not be practical to always have to go via a solicitor (it will also be expensive). It will not be appropriate if contact happens at a weekend, when the solicitor’s office is closed. In such cases thought needs to be given to how to protect the applicant, but allow necessary information to be exchanged.
- In many cases a third party can be identified. If this is not the case, consideration needs to be given to restricting the communication, such as text only, so that there is a written record of the communication. The provision can also be worded so as to only allow communication if it is related to the welfare or contact arrangements relating to the children.
4. Not to attend an address
- Another frequent term is that the respondent will be forbidden to attend the applicant’s address. As above, when children are involved this can be problematic, especially as handovers will need to take place. To ensure the protection of the application, thought needs to be given as to an appropriate location or person who can assist in the alternative to the applicant.
- Identifying an appropriate third party, should be done before the applicant arrives at court. It will be important that any person named as an authorised point of contact / individual to assist with handovers has agreed in advance.
- If you are seeking to prohibit attendance at an address, a map can assist the Judge to be sure it is an appropriate provision. It is important to ensure that the respondent is not accidentally prohibited for attending a location he or she may have a legitimate reason to attend.
5. Ask for reasons
- When making an ex-parte application, it is important to keep a full note of what is said at the hearing. It is also important that a Judge gives reasons as to why the order he or she is making is necessary, and particularly why proceeding on an ex-parte basis is appropriate. If your Judge does not do so – don’t be afraid to ask!
6. Have the evidence you need at Court
- If the applicant has suffered physical violence and there is evidence of injury – make sure that evidence is at court. Don’t wait to simply produce such evidence at a later date if necessary. Produce it at the start to support your case.
- This is particularly important if the applicant is alleging harassment via text or email. It is one thing to make the allegation in a statement, but even more persuasive to attach evidence and examples to the applicant’s witness statement. I am often presented with a phone at court by a client asking me to look at such evidence – however most Judges will take the view they cannot take this into account if it is not attached to the witness statement.
7. Duty of full disclosure
- It is important to remember that the applicant has a duty of full and frank disclosure to the court, and those who fail to remember this may find they fail to secure their desired order Re W (Ex parte orders)  2 FLR 927.
- The Family Procedure (Amendment) Rules 2017 (“2017 Amendment”), which come into force on 6 April 2017 amends the Family Procedure Rules 2010 Parts 10.
- The Family Procedural Rules require that non-molestation orders are personally served upon the respondent. However, the 2017 amendment ensures that applicants for non-molestation (and occupation order) under Part 10 must not serve the respondent him/herself.
- The most common solution to this problem is to serve via process server.
- However it is important to remember that if you need to ask for alternate service, make sure you have the details of your address for postal service, email address or Facebook account with you at court to record on the face of the order.