August 31st, 2010
Domestic Violence & Ex-Parte Non-Molestation Injunction Applications
Often emergencies arise in Family Law matters which require urgent and immediate steps being taken to protect our client by way of an emergency ex-parte injunction. Injunction situations can arise 24 hours a day and in most cases we aim to have the matter brought to the attention of an emergency Judge within hours of being instructed. Time is therefore nearly always of the essence in nonmolestation injunctions and it is therefore essential that we get everything right, first time round, as there will rarely be any second chances. In the first of this two part article, Cyrus Mansouri explores the law applicable to ex-parte emergency non-molestation injunctions in English courts. In part two we will look at the more complex requirements for ex-parte Occupation Order applications under Part IV of the Family Law Act 1996.
Ex-Parte Injunction Applications, what are they
An ex-parte injunction application is an injunction application to a District Judge where the other party to the injunction application, often your spouse, called the Respondent, will not have been made aware of the injunction proceedings in advance of the hearing. Ex-parte injunction applications are an emergency measure and they are an opportunity for a District Judge to be asked to make ‘injunctive’ or ‘protective’ Orders without the person from whom you are seeking protection being aware that a court is making an Injunction Order against them. Ex-parte injunction applications are often used in situations where there is violence or harassment and the person bringing the injunction application requires the immediate protection of the court. Ex-parte emergency applications for injunctions fall under Part IV of the Family Law Act 1996 (FLA 1996). As time is almost always of the essence in such emergency injunction applications it is vital that the most important part of the application, the affidavit, is prepared accurately, properly and in accordance with the provisions of the Act.
In an ex-parte injunction or non-molestation application the affidavit provides the basis upon which an ex-parte application is made and it sets out the facts and law upon which the Judge is being asked to make an Order. Far more is demanded of it than mere story telling. It is an intricate document which needs to be drafted clearly enough to satisfy a District Judge that the injunction Order being asked for should be made in the absence of the other party knowing about it. This is where your choice of solicitor and barrister can make the difference between a successful injunction application or a waste of time, effort and money. The drafting of the injunction application affidavit therefore requires specialist skill. The factual detail must reflect what the applicant perceives to have happened.
Non-Molestation Injunction Orders
Types of molestation and harassment
Applications for ex-parte non-molestation injunction orders need not be restricted only to acts of violence. These can extend to all acts of ‘molestation’ including ‘harassment’. There is no statutory definition of what molestation includes, but several cases have been beforethe courts where guidance has been provided, of which perhaps the most famous was C v C  1 FLR 554 and Walton v Johnson  1 FLR 350. Also section 42(5) FLA 1996 states that the court will have regard to all the circumstances that go toward securing the health, safety and well being of the applicant, relevant child or any other person that the order is being sought to protect.
There is a great deal of discretion afforded to the court in determining what constitutes molestation and, consequently, whether an application should succeed. Molestation may be perfectly clear in some cases involving clear acts of violence or threatening behaviour. However; where the molestation complained of is more indirect or subtle, success could prove more problematic. Often the molestation complained of will comprise a series of perhaps more minor acts of harassment, which if taken alone may not amount to serious violence or threatening behaviour, however; when taken as an ongoing pattern of behaviour, they clearly amount to molestation or harassment. It is surprising how often we are approached by clients who have been suffering a violent or threatening relationship for many years and yet who do not realise what protection the courts can offer them, perhaps simply because they have grown accustomed to the abusive behaviour of their partner. Therefore, in cases where there is less actual violence, or direct fettering with the applicant’s person, we will look to outline in greater detail the history of the relationship and the effects, whether physical, financial or psychological, upon the applicant, so as to explain exactly, to the Judge, why the order should be granted. The behaviour of the respondent should be clearly defined, causally linked to the applicant’s reaction, which should of course be given as much detail as possible too.
Injunction and Non-molestation applications such as this which are made on an ex-parte basis will most often be before the ‘district judge of the day’, and, it will be almost impossible to enter into much by way of oral argument and persuasion when appearing before the Judge. The hard work must therefore be done before the hearing, with a expertly drafted affidavit that must address all potential concerns.
Reasons for making the injunction application ex-parte
Not all application for non-molestation injunctions will be made ex-parte. Indeed there will be situations where such application will be made ‘on notice’, meaning that the other party will be informed of the application and have an opportunity to attend the court at the time of the application to give their side of the events. On notice applications are also known as inter-partes applications. However; in emergency situations, where the urgent protection of the court is necessary, such applications will invariably be made ex-parte. When an application for an injunction is made ex-parte, it is a requirement that a reason must be expressly stated for why the application is being made ex-parte rather than inter-partes. In determining whether to exercise its powers ex-parte, the court must have regard to all the circumstances including:
(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved—
The extent to which of the above principles applies will depend upon the instructions we receive from our client, the applicant, and the particular circusmtances of each case. Where a non-molestation injunction application is granted ex-parte by a Judge, it will usually be listed again for another hearing within a week or so of the ex-parte application so as to allow the other party, usually called the Respondent, to attend the court and give their version of events. An ex-parte non-molestation injunction Order does not come into force until it is served on the Respondent and therefore immediately after obtaining an Order on behalf of our clients we have arrangements with a team of private detectives and ‘process servers’, ready to serve the Order of the court on the Respondent in person within minutes of the Order being granted by the court. In circimstances affecting the safety and welfare of our clients speed is of the essence and any delay can have serious negative implications. However; once the ex-parte non-molestation injunction has been served it is automatically in force and any breach of the Order by the Respondent would constitute a criminal offence and will result in the respondent being arrested and charged with that criminal offence by the police.
Terms of the non-molestation injunction order
Another important factor when seeking an ex-parte non-molestation order are the terms of the injunction being sought. The court should be invited to make secific provisions of an injunction and it is vital that the wording of those provisions is carefully drafted to assist the court, because any error in drafting can result in problems. Therefore specific behaviour may need to be addressed within the court Order. A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.
Changes to the FLA 1996 were brought about by the Domestic Violence and Criminal Victims Act 2004 (DVCVA 2004). This encourages the terms of an Order to be drafted in specific form. This is largely to help with enforcement of the injunction Order and the fact that most non-molestation injunction orders are now likely to be enforced in a criminal court where the certainty provided by specific drafting could be crucial to a conviction. It is therefore not unusual for an injunction to contain provisions protecting chattels, dwellings (independent of occupation orders) and against the multitude of different ways in which molestation and harassment manifests itself.
Duration of non-molestation injunction orders
A non-molestation order may be made for a specified period or until a further order is made. The length of the order will largely depend upon the extent to which the terms of the order affect the respondent. In most cases we will ask the court to make the Order for a period of 12 months so as to allow time for the applicant to start their new life free of violence and harassment.
Disclosing the Applicants address
In many situations the Applicant in ex-parte proceedings will be frightened of the Respondent and they may have fled to a new address and be terrified of the ramifications of teh Respondent discovering their whereabouts. In otrder to protect our clients where necessary we will ensure that your address details are omitted from the ex-parte non-molestation injunction application and that the court makes an Order prohibiting disclosure of your address to the Respondent or their lawyers.
Mansouri & Son Solicitors are specialist Family Law lawyers based in London. Call us on 020 8401 7352 to discuss your concerns and requirements or to make an appointment to see one of our specialists.