The President of the Family Division, Sir James Munby, has issued guidance on the duration of orders made without notice (ex parte) in family proceedings, revising guidance issued in 2014. The original guidance primarily addressed without notice applications for a non-molestation order but also applied 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.
Key changes in the revised guidance include that para 5(iii) clarifies the position in relation to the return date, stating:
‘The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made. How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6, often a very short listing may well be appropriate.’
On the issue of the duration of the order, the earlier guidance said at para 5(iii) ‘The duration of the order should not normally exceed 14 days.’ This has been replaced with a new para 5(iii) which states:
‘Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non-molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days. This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one-off problem that may subside in weeks rather than months.’
In addition further guidance is provided on the wording of the order at para 5(iv):
‘The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.’
Specific provision is made in para 5(v) as to an order made in accordance with Part IV of the Family Law Act 1996 (FLA 1996), which must recite that the court has had regard to FLA 1996, ss 45(1) and (2).
The President has reminded practitioners (at para 7) that the principle that applies to all 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, is that a without notice application will normally be appropriate only if:
- there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or
- there is a real risk that, if alerted to what is proposed, if ‘tipped off’, the respondent will take steps in advance of the hearing to thwart the court’s order or otherwise to defeat the ends of justice; in an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests their victim or exerts pressure on them to abandon the proceedings.
The suggested wording for orders made without notice that was previously set out at para 8 of the 2014 guidance has been removed from the revised guidance.
The revised guidance can be accessed here:
Geraldine Morris is a solicitor and Head of LexisPSL Family.