In DS v AC [2023] EWFC 46, [2023] WLR(D) 182 (29 March 2023), Lieven J deals with a non-molestation order application, and gives judicial guidance on the making of such orders on a without notice basis.

However, only one party (the male respondent) was represented by an advocate, the woman applicant (DS) being unrepresented. So this “guidance” was given without the benefit of any argument or controversy at the bar. To make matters worse, the judge appears not to have properly read the case law on which her guidance purports to rely. What seems to me to be a serious misunderstanding by a judge in this area, may give ammunition to Legal Aid Agency staff to make life more difficult for abused parties.

Non-molestation

Lieven J points out that the term “non-molestation” (Family Law Act 1996 (“FLA 1996”) s 42) is not statutorily defined. That is so of the 1996 Act itself. The form DS would have completed as part of her application describes in a marginal note: “‘Molestation’ is a word used in law and by the court to cover all kinds of unwanted, harassing and abusive behaviours”. Lieven J makes no reference to this rule makers’ definition.

Nevertheless, various attempts – judicial and statutory – have been made to capture the related concept of the terms “domestic violence” and “domestic abuse”, since at least 1978 when, in Davis v Johnson [1978] UKHL 1, [1979] AC 264 at 336 Lord Scarman explained the term “domestic violence” in the then new Domestic Violence and Matrimonial Proceedings Act 1976 (DWMPA 1976) and in relation to occupation orders:

“I conclude that the mischief against which Parliament has legislated by [DVMPA 1976 s 1] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction — actual, attempted or threatened — is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.”

This was in the context of the House of Lords (over the lone opposing voice of Lord Diplock on this point) that the new legislation enabled the courts to exclude one joint occupier. This became an “occupation order”, now in FLA 1996 ss 33 – 38. (The 1996 Act followed from DVMPA 1976.) Some might say that the modern law and terminology is now represented by the judge-approved Family Procedure Rules 2010, PD12J and more recently Domestic Abuse Act 2021 s 1. In view of all this, to say of a 1996 statute that “non-molestation” has no definition, and without review of more recent statutory reference is disappointing.

Lieven J does not mention Davis v Johnson but she must know the case well. It founds the modern law following the House of Lords 1966 statement on stare decisis: that only the lords can go behind their own earlier decisions. Lesser courts cannot, save for the per incuriam exception as discussed in my earlier post: Freezing orders: Mr Justice Mostyn and the ‘per incuriam’ exception. 

The application

Another problem I have with this guidance is that Lieven J seems not to distinguish the law on occupation orders (FLA 1976 s 33 etc) and non-molestation orders (s 42A); and she uses occupation order case law to shore up the very public guidance she offers on s 42A orders where – as the case law shows – the two should not be cross-fertilised in this way.

How does an applicant seek an order at all? Rule makers do not in any real way distinguish the different types of order – occupation and non-molestation – under FLA 1996 Part 4; and when they may be made without notice – and the consequences of any such application. It must be assumed that DS would have completed a Form FL401 and handed it to the court administration. For policy reasons no fee is required. FL401, in particular, asks whether the applicant wants to make the application on notice or not.

Having come that far in DS v AC, what Lieven J has done is to encourage courts to become engaged in a competition as to what different form of domestic abuse is “molestation” and what is not. How badly must a respondent behave to avoid an order? And she does this without reference to Domestic Abuse Act 2021 s 1 (where domestic abuse in modern terms is defined). If an applicant has been advised by police to make the application – as this applicant was – and if she has gone to the trouble of filling in forms etc, this surely suggests there is a measure of domestic abuse (to use a modern term) which justifies court intervention under FLA 1996 Part 4 even if only for a short number of months.

Some terminology

FLA 1996 Part 4 deals separately with two quite different types of order: occupation and non-molestation. By contrast Family Procedure Rules 2010 Part 10 deals with both, and with the procedure for both types of application under the 1996 Act, almost interchangeably. Lieven J was dealing with a non-molestation order application. Yet she defined her guidance mostly in relation to a without notice occupation order appeal. She referred extensively to R v R (Practice Note) [2014] EWFC 48, [2015] 1 WLR 2743, [2015] 2 FLR 1005 (11 December 2014) where, she says (at [22]), Peter Jackson J “considered an appeal relating to a non-molestation order which had originally been granted at a without notice hearing”. He said, at [1]:

“1. This judgment follows a hearing on 18 November 2014 at which I allowed an appeal against a case management order made by a District Judge in proceedings under the Family Law Act 1996. The case highlights 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.”

She relies on these principles as central to her “guidance”. However the case in question was not about a non-molestation order made without notice. As becomes clear later on in Peter Jackson J’s judgment, the case was about a not on notice occupation order, an altogether different category of case; and especially as a parent without notice will be deprived of home and contact with his children. Peter Jackson J summarised the appeal before him, at [3]:

“3. 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. All in all, Mr R could be forgiven for feeling like the hapless protagonist in Kafka’s The Trial.”

Whatever her difficulties, DS is not in the same genus of family litigation as was Mr R in that case; and they are not seeking anything like the same type of family proceedings remedy.

The family judge’s job

What is a judge’s job in this (or any) type of litigation? It is to adjudicate on an issue brought before the court; or, as here, to decide whether or not a legitimate type of application should be allowed to go any further: that is, should it be dismissed in limine (at the outset) or struck out (FPR 2010 r 4.4). But how does a case get to the judge in the first place? And is a judge entitled to influence what cases go before the court or to guide what that judge thinks should be issued by the court administration?

In the late 1990s I recall a meeting of a group of family lawyers. One, a circuit judge, was fulminating about the Protection from Harassment Act 1996 and its absurdity (as he saw it). A mildly spoken Family Division judge was at the meeting. “But Cedric”, she said “you must hear the application” (or for reason strike it out, she might have added). That is what judges are for, once the court administration has issued the application and it is in the judge’s list.

Typically a non-molestation order application for a represented applicant goes through three stages – four, if legal aid is involved:

  1. Advice (for represented parties)
  2. Application for legal aid, where the merits of an application is considered
  3. Issue by the court administration
  4. Adjudication

The judge’s job is to adjudicate. Maybe DS’s case was weak. We only know what the judge tells us. The district judge could have struck out the case full-stop (FPR 2010 r 4.4(1)). Lieven J re-did this part of the job.

The point here is that if an application is issued and the correct procedure under a statute or common law is followed, a judge must deal with it. If it is a dismissal or strike out, the dismissal can be in fairly curt terms; and may be accompanied by all sorts of minatory orders: costs, civil restraint orders etc. But once  the court has issued the application, a judge must dispose of it.

Non-molestation orders and judicial guidance

Though Lieven J describes the hearing as “without notice”, by the time it came before her on the set aside or dismissal it was “on notice”: that is to say, DS was represented (did anyone point that out to the judge, one wonders?). Lieven J’s explanation of why the case had come into her list was in effect, solely administrative, not judicial:

“1. …. I felt it would be helpful to set out the basic principles that apply to such applications and orders. I do this in part because there has been a significant growth in the number of such applications during the pandemic, and in many parts of the country that increased number has not fallen back to pre-pandemic levels. A large proportion of the applications are made without notice (ex parte) and it may be useful for practitioners to be reminded of the very strict criteria for the making of such orders ex parte.”

Lieven J relied heavily on guidance given by Peter Jackson J in R v R (Practice Note) and described by her as “an appeal relating to a non-molestation order which had originally been granted at a without notice hearing”. It is regrettable to say that this is not true. It was an appeal against the fundamentally different occupation order, which in R v R had indeed been granted without notice. Throughout my time in practice a without notice occupation order has not been permitted save in truly extreme circumstances (see eg Davis v Johnson [1978] UKHL 1, [1979] AC 264 and since).

Lieven J makes no reference to what is meant by the requirements of notice (see eg National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) [2009] UKPC 16, [2009] 1 WLR 1405, per Lord Hoffman at [13]; and see commentary on FPR 2010 Part 25 in the Family Court Practice 2022) nor of the urgent remedies and without notice provisions of FPR 2010 Part 25. She does not refer to why litigants should generally apply on notice (as Lord Hoffman explains).

Litigation: a need for separation of powers between administrators and judges

Yes parties and their advisers (if any) must comply with statute and rules. The “legislators” (eg Family Procedure Rule Committee) must frame the rules so they are clear to administrators (ie court staff who are required to issue applications – with or without notice). Judges judge. Thus are powers kept separate: the legislator, the administrator and the judge are, in microcosmic terms which Montesquieu would have understood, kept separate.

Perhaps the less said about Lieven J’s approach to R v R the better; but whether or not the guidance is fair or a judge is entitled to put it out in this way, its cogency as guidance surely tarnished by her misunderstanding of what Peter Jackson J said. How do you change judicial guidance like this, if change is needed? For thoughts on what is “guidance” and its limits, see my earlier post Guidance as law. 

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