President Updates Guidance on Duration of Ex Parte Orders

By Robert Wilkinson

The President of the Family Division has issued updating guidance in respect of the duration of ex-parte orders in the Family Court. The Guidance can be found here, but is also summarised below.

"The relevant principles, compliance with which is essential, are as follows:

(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date. It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).

(ii) 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.

(iii) 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.

(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.

(v) Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.

(vi) The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’ is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.

(vii) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6 Experience suggests that in certain types of case, for example, non‐molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.

(i) When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re‐service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard.

(ii) If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:

(a) Paragraphs 5(i), (iii)‐(v) must be complied with in relation to the new order and the new order will need to be served.

(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in the application or in the initial order, (a) the new order must specify a new return day, and (b) paragraph 5(ii) must be complied with in relation to the new order.

7 I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subjectmatter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:

(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or

(b) 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 his (or her) victim or exerts pressure on her (him) to abandon the proceedings."


Welcome To Julia Feely

Chambers is delighted to announce the arrival of Julia Feely as a tenant in chambers. Called in 2009, Julia joins us with immediate effect. Julia previously practised at 1 Gray’s Inn Square where she established a strong and successful family practice focusing on private children, financial remedies and public law children work. Julia’s broader legal background includes periods working for a Magic Circle firm and a boutique litigation firm giving her a broad experience in many aspects of commercial litigation.

We wish Julia every success in her career at New Court.


Chambers & Partners 2017

We are delighted that New Court Chambers has been ranked in Band 4 as a leading Family/Children set in the latest edition of the Chambers & Partners directory.

Christopher Poole and Giles Bain retain their Band 3 rankings for Children and Sally Jackson remains in Band 4 for Children and Money.


THE SET

"Specialist family set acting on the London and South Easter Circuits in cases across the gamut of family finance and children law. The chambers is noted for its strength in public children law work, and handles complex matters involving serious abuse and injury to vulnerable children and adults."


CLIENT SERVICE

"The clerks, led by Paul Bloomfield, are very accommodating and will bend over backwards to get something done. They are extremely well organised."


CHRISTOPHER POOLE

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"Handles the whole spectrum of children-related issues, from international adoption to abuse and neglect cases. He acts as co-head of chambers and is commended for his work on behalf of guardians and local authorities in serious matters."

Strengths: "I think he's a supremely confident advocate who certainly knows his stuff in public law. He has a quiet, authoritative manner that gets to the heart of things." 


GILES BAIN

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"Co-head of chambers who focuses on complex public law children cases, representing parents, children, local authorities and third parties. His practice sees him engaged in serious matters including those relating to sexual abuse and non-accidental injury."

Strengths: "He's a very calm, measured and intuitive advocate. He's very easy to work with in a high-pressure environment and his technical ability and client manner are very good. He's enormously well respected by judges."


SALLY JACKSON

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"Covers the full range of family cases, from complex children proceedings to high-value divorce disputes. Her public law practice sees her representing all parties, including parents, children and local authorities."

Strengths: "She has a meticulous mind and her advice is second to none. She's ver clear with the clients when explaining quite technical stuff relating to the law. She goes above and beyond her brief."


Anne Lehane

All members of New Court were greatly shocked and saddened by the news of Anne Lehane's sudden and unexpected passing last week.

Anne was well known to many at New Court, initially in connection with her responsibilities as Senior Solicitor for the Royal Borough of Kensington and Chelsea and subsequently as part of the Tri-Borough.

She was a highly valued and respected colleague and she will be sorely missed by all who knew her.

We wish to extend our condolences to Anne's immediate family, close friends and colleagues.


October 2016 Newsletter

The October 2016 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers Newsletter October 2016

This edition includes the following articles:

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New Pupils Join Chambers

We're very pleased to welcome Jemimah Hendrick and Chantelle Barker to chambers as pupils for the next 12 months. Jemimah and Chantelle will be supervised by Giles Bain and Elissa Da Costa-Waldman for their first three months. From April 2017 Jemimah and Chantelle will be able to accept instructions themselves. We wish them both the very best of luck over the next year.