Thursday, December 11, 2014

R v R: Kafkaesque

Mr Justice Jackson
I remember when I was practising being concerned by the ease with which ex parte domestic violence injunctions could be obtained. Some solicitors seemed to advise all of their female clients to apply for one as an 'opening gambit', which could often determine the entire outcome of the proceedings, especially where an ouster order was made. After such an order the ousted party would find it very difficult to return to the property, and of course the issue of residence of any children would also effectively be decided in favour of the party remaining in the property. In fact, I was so concerned after one particular case that I recall writing to Family Law, where my letter was published.

That was all long ago, but clearly the problems, or at least some of them, remain. In fact, in R v R (Family Court: Procedural Fairness) an ex parte order led to such unfairness for the husband at the hands of the family justice system that Mr Justice Peter Jackson said that the husband could be forgiven for feeling like the hapless protagonist in Kafka's "The Trial":
"In a nutshell, on the evening of Friday 20 June 2014, Mr R returned from work as normal to the home at No. 23 X Street where he lived with his wife, Mrs R, and their six children. Soon afterwards, he was served with a Family Court order obtained by Mrs R that day which, amongst other things, forbade him with immediate effect from entering or attempting to enter X Street. The order had been made at a hearing of which he had no notice in proceedings of which he was unaware. Mr R duly vacated the property and, having done so, attempted over a period of months to challenge the order through proper court procedures. However, on the basis of an insignificant procedural failing, the court refused to hear his challenge. In the meantime, he was arrested for an innocuous breach of the original order to which he pleaded guilty without receiving legal advice and in consequence acquired a criminal record. And as if that were not enough, the effect of the original order was to deprive him of contact with his children for fully five months."
The situation leading up to these events was the typical scenario. The marriage had been in difficulties for some time and discussions took place between the couple about a separation that would involve Mr R moving out. At around the end of May 2014 , finding that Mr R had not moved out, Mrs R consulted solicitors. They applied for legal aid for Mrs R on the basis that she was a victim of domestic abuse. On 20 June, the solicitors issued an application for a non-molestation order and an occupation order and requested a without notice hearing. This request was contained in a Certificate of Urgency signed by a partner, certifying that the application was of such urgency that it must be heard expeditiously. The reason given was that the applicant was at risk of significant physical and emotional harm should the respondent be given notice.

Ms R's statement in support of her application referred to only one recent incident, an argument on 14 May 2014 about responsibility for a credit card bill, during which Mrs R alleged that Mr R was verbally abusive, shouting and swearing and calling her derogatory names. "If accepted by the court," Said Mr Justice Jackson, "Mrs R's evidence may well have justified a non-molestation order after a hearing of which Mr R had notice. It in no way diminishes her account, however, to say that the evidence scarcely justified the making of an order without notice."

The without notice application went before a Deputy District Judge on 20 June. The transcript indicates that she made clear at the outset that she was not going to grant an occupation order removing Mr R from 23 X Street, and remarked that Mrs R's evidence was in general old. She then went on to consider the draft order, noting that the family lived in X Street. She said that she would make a non-molestation order including all the provisions in the draft order, but only for a few days. Strangely, she then approved an order barring Mr R from the street in which the home was situated. Mrs R's lawyers did not point out this anomaly to the court. The order was expressed to last for a year. Mr R was at the specific behest of the judge given permission to apply to vary or discharge the order on 24 hours notice and a hearing was fixed for an early date, 26 June. It was stated that the court would then consider whether the order should continue.

The order was served by a process server on Mr R at 23 X Street at 8:15 p.m. "It is a sign of the reality of the situation", said Mr Justice Jackson, "that Mrs R agreed to him remaining in the property overnight. Mr R left in the early hours of 21 June to go back to work, taking little or no personal property with him. He has not been back to the property since."

After this, things went (even further) downhill for the husband. I won't go into the details, but for reasons that were at least in part beyond his control he was unable to file his statement by the 30th of June, as required by the court. He requested an extension of time, but the court responded by vacating the return date fixed for the 23rd of September, because of the husband's failure to file his evidence. Accordingly, if the husband opposed the continuation of the order, he would have to make a formal application himself, which he did on the 15th of July. His application was dismissed at a hearing on the 12th of September. He appealed.

Mr Justice Jackson granted permission to appeal and allowed the appeal, setting aside all previous orders, on the basis that each of the following steps in the process was wrong:

1. A without notice application should not have been made.

2. A without notice order should not have been granted on this evidence.

3. The order that was granted did not reflect the judge's intention.

4. The orders preventing access to the street and banning direct communication were unnecessary and disproportionate.

5. At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here.

6. The date given for a contested hearing of Mrs R's application was too distant to be meaningful.

7. Mr R's request for extra time to file his statement should have been granted at the outset.

8. The hearing date for Mrs R's application should not have been cancelled.

9. The application for relief from sanction should have been considered on paper and granted.

10. The date given for a contested hearing of Mr R's application for relief from sanction was again too distant to be meaningful.

11. The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R's statement.

Returning to the beginning of his judgment, Mr Justice Jackson said that the case highlights the following important principles, applicable to all such cases:

(1) The default position of a judge faced with a without notice application should always be "Why?", not "Why not?" As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.

(2) The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.

(3) Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person's freedom of action and require specific evidence to justify them.

(4) The power to penalise non-compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6) with that aim.

(5) The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.

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