Hello and welcome everybody. Very pleased to welcome you to today's session through data law. My name is Safta Mahmud. This done is session two and I'm taking you through the area of injunctions and domestic abuse orders. The current law and practice by way of a 2024 update. So I just like to say session two as you will have recalled from the previous session that I've discussed with you. Uh The objective of these three sessions is three in total is to give you uh some useful information surrounding the various forms of remedies that are available for personal protection orders when you're dealing with both Children and uh family law cases. And therefore this is aimed at practitioners advising in family and child law related matters. And uh there's various areas I'm going through with you in the last session. You remember I spent some time going through with you. Uh the uh the key elements of Nomal station and occupation orders. We made reference to the Domestic Abuse Act of 2021 and some of the changes that that has brought about in so far as that's concerned, we also looked at the criteria for pursuing these orders and had a discussion of uh not just law, the criteria but also some of the paperwork as well. Today. What I'm going to be doing is I'm going to be continuing with having a discussion with you. Furthermore, in relation to applying for no molestation and occupation orders. I'll be making specific reference to the most recent president's guidance on pursuing no molestation orders. I'll be taking you through that and how really we need to be using this uh into 2024. And uh we'll also be looking at some of the aspects surrounding enforcement. So where do we stand with the enforcement of orders, whether it's by way of uh criminal sanctions or whether it's by way of civil sanctions through the use of part 37 of the family procedure routes, insofar as committal applications, I'll be taking you through some of those areas and then the final session, I'll be looking at uh some of these other areas surrounding Q and RS surrounding the use of the Protection from Harassment Act. We'll be looking at some of the aspects surrounding public Children law matters. Uh and also some of the uh changes coming about insofar as domestic abuse protection notices and orders are concerned. Ok. So we'll see how we get on with this. And I'm looking at the laws of June 2024. So as I mentioned in the last session, it's very important that when you are pursuing a noil station and, or occupation in order to be very familiar with the process through which you're going to be seeking these orders. And therefore when you are going to paperwork together, uh make sure when you're doing your statement in support, whether it's in the form of the statement format, the FL 401 T or whether you're preparing your own statement, very important to provide the options and the pros and cons really of those uh when you're advising your clients, so don't make decisions for them. Obviously, it's their decision. Uh if they don't want or don't feel comfortable at that stage to pursue an order, they may just want a warning letter sent and of course, you need to respect their wishes for that put together a plan which prioritize their needs, cover their medium short term needs, give reassurances. It is obviously very important and give realistic timescales. You know, if you are invited the court to list a matter for an on notice hearing, then be able to tell your client as to realistically when given uh that the uh the the court set up realistically when that may be heard. If you are preparing the without notice, application, start preparing it as early as possible. And obviously, uh there is the application form as we said, the fr 4 to 1 and then there's the template that you can use as well and there is no core fee power for these applications that went some time ago. Now, some of you who do public funding work will know that uh you've got the gateway evidence, uh which sometimes may be required if you are pursuing public funding for clients. For example, if you're looking to apply for a divorce or say private Children or application or maybe a financial remedy, then there is the gateway evidence that would be required to obtain public funding as well, obviously satisfy the means. And this is where you've got the civil legal aid procedure amendment number two eggs of 2017, which came to effect on the eighth of January 2018. And that sets out the fact that there is no time limit upon the evidence of domestic abuse or child abuse that you can rely upon or your client to rely upon for the purposes of securing public funding. So for example, there was anomalistic or occupation order granted, then that itself does take the form of the gateway evidence that could be relied upon if necessary for the purposes of acquiring public funding to pursue other family proceedings if that became necessary. And with that in mind, if you are pursuing say the gateway evidence or your client is pursuing the gateway evidence to pursue public funding. And there were changes also that came about last year. This is as a result of the legal aid sentencing and Punishment Offenders Act 2012 Miscellaneous Amendments order 2023 and the effect of this essentially is this, if your client is relying upon the gateway evidence in the form of say, going to see their health professionals such as their GP who has examined them uh and is satisfied that they are the victims of domestic abuse. Then as of last year, as a result of this amendment order, that examination by a health professional doesn't now have to be done in person. It could be done over the telephone, it could be done by video conference as well. So of course, as long as it's done then that could provide the necessary gateway evidence if necessary. Now, the other thing we need to bear in mind is the position surrounding vulnerable persons. So this is where as I mentioned earlier, we've got the Domestic Abuse Act of 2021 which came to effect at the end of April 2021 various provisions within it are already in place. So one of the provision that came in uh a few years ago is section 63 subparagraph three of the act which provides that in family proceedings uh where there is evidence that a person is a victim of domestic abuse or is at risk of being a victim of domestic abuse carried out by a party to the proceedings or is a relative of party proceedings or witness in the proceedings. Then it is to be assumed that the uh following matters will actually be diminished by reason of their vulnerability. And that is the quality of the evidence. And if they are part of the proceedings, their participation in the proceedings. Ok. So very, very important that if there is evidence that your client is the victim of domestic abuse or he's at risk of by say another party in the proceedings, then there are treated as being automatically uh Von Noel in terms of the quality of evidence they're gonna give and their participation. And therefore because of that, you then need to be looking at what participation directions may need to be sought to enable them to be able to participate in those proceedings. Now, this is something that has been looked at very recently in this case of X and Y domestic abuse participation directions obligation to consider. Uh This was a judgment handed down by Mr Justice Williams on the 18th of April 2024. It was a care case but it does really hammer home some very very important points insofar as the position surrounding participation directions are concerned. And basically, there was a hearing that took place previously and at that hearing, it was not raised that the mother was a victim of domestic abuse carried out by the father of the Children who is a party to the current proceedings. And therefore that assumption didn't arise because he, even though the mother was, there was evidence that she was a victim of abuse. This was by a former partner who wasn't a party to these proceedings or who wasn't a witness. So therefore, that assumption of vulnerability did not arise. Um nonetheless, the court did say that uh when you are dealing with matters where one is assuming this element of vulnerability, there has to be some evidence before the court uh in, in the form of really raising this, in order for the court to be satisfied that that uh assumption is to stand. And therefore his lordship said that the duty upon the legal team is this that whilst, yes, the court is under an obligation in every case to provide a fair hearing, which takes into account matters related to a person's ability to participate. Where as in the case of this, as in the facts of this particular case, where party legally represented, then there is an obligation upon their lawyer to consider how that party will participate. And that responsibility lies firstly temporarily and procedurally on the legal team. And this is where it's good practice and in corners with professional duties to use the advocate's toolkit uh to really look at how one is then looking at ensuring that that person can participate. So really what you need to be doing in these circumstances is this if, if you're say securing pursuing, say no station under occupation order for a client uh against the other party, that it's very important whether in your client's witness statement or otherwise to raise the fact that they are the victim of abuse or at risk of uh being a victim of abuse. And of course, by doing that, then there's this notion that they are automatically classed as vulnerable. So therefore, what you need to be doing, I would suggest is making sure that that's clear in your position statement and therefore set out what participation directions you're going to be seeking on behalf of your client and therefore making sure that that's made clear uh and therefore set out uh within your position statement. So the court is aware of that and therefore can make appropriate participation directions that could take the for maybe asking the court to enable your client to access, attend the court through a different route and leave the court to a different part of the building, maybe to have a separate conference room available for them in the court building if possible, having a screen. So the other person can't look at them if the hearing is remote, for example, whether your client is seeking permission to have their camera switched off, so that the other person can't stare at them, for example. So you know, these are some of the things you need to bear in mind in so far as that's concerned. Now, in relation to a statement in support, as we said, bear in mind the statutory criteria when you're drafting this obviously names and addresses. If your client is staying in a confidential address, say in a refuge or elsewhere, then you shouldn't obviously put their address on there. You should file with the court form C eight, which is a confidential address form, but obviously don't put their address then on the statement or on the, uh, the fr 401, the application form set out the background of the application if they're married or otherwise. Uh, when their relationship started and deal with the factors of abuse in chronological uh format, go to the criteria. I would suggest you might want to do subheadings, setting out each of those h subheadings that I mentioned in the previous session in terms of the significant harm test that we mentioned taking the court through housing needs, financial resources, health conduct of the parties, men. If a warning letter was done, what effect that had mentioned, police involvement mentioned specifically if you are seeking the order without notice, why it's being sought mention if you're asking for a power of arrest to be attached to the occupation order and summarize really why you're seeking the order that you are. So it's very important to make sure the statement is clear in covering really all of those various elements. Now, this is where as I mentioned, it's very, very important to make sure that you do indicate as to whether you are seeking the order without notice. So you need to set that, that make that clear making reference as we said to the criteria under section 45 that we mentioned earlier. And if you are seeking an occupation order, indicate if you're seeking a power of arrest and why the criteria for that is set out within section 47 of the act, which I'll take you through shortly. You can use the template statement. As we said, some lawyers will some won't. It's got some very useful guidance in there. For example, a template statement is very good in the sense that it sets out uh amongst other things, uh detail of setting out the first incident, the worst instance. So section four, for example, requires details to be set out as to the first incident with any witnesses. If so whom people who are told about that the impact of that upon your client's health safety and well being and uh was their police report, for example, medical report or photographs. So that's the first incident you then have to do a similar. So section five refers to similar provisions in relation to the worst incident and then also the first instance. So you'd be putting the first in the worst incident, the most recent incident. So you'd be putting that section six specifically of that form requires you to set out details of any patterns of abuse or other instance. So is this a case where there is coercive and controlling behavior? Is this a case where there is a pattern of abuse? And therefore you're providing information on that and how again this impacts on your client's health safety and well being and also whether there were any witnesses to that. Now, if you are seeking an order on a on notice basis, then uh or if you are coming to return date and say the matter is contested, then is it going to be listed for a contested hearing? And if so you need to think about what happens in the interim. Is the order or any undertaking to be continued until a contested hearing? Are you going to be asking for corroborative evidence to be uh provided from say a GP the hospital, maybe a school, police, local authority, other agencies which are the witnesses and again have regard to participation directions as I mentioned earlier and they may need to be an update to those and continuation of participation uh directions the uh when you are applying for these orders, whether you're going for these without notice or a notice, you'll have your application form, you've got your statement, you've got your notes of acting. These will be issued. These will then be served upon the respondent. You need to give them at least two clear days notice to enable them to seek legal representation unless the court abridges time for service. And if the order is granted and even if it's not uh when there is a return date or there's an unal hearing, very important to make sure that the respondent is personally served with the application. Often, many of you will instruct an inquiry agent to process server to personally serve the respondent with the paperwork and obviously ensuring that your client is safe and able to make uh uh uh uh get themselves to court. So what you do in a hearing, very important when you're doing a hearing for these orders, make sure you link the law to indicate why the order is, is appropriate And you need to be realistic. It's not easy and it's certainly not common to acquire a without notice, occupation order. These are not very common at all, as you can imagine because the court will want to er, a side of caution. So if you're going before the court today, inviting the judge to make a without notice occupation order, if that is made, that's then served upon the respond, they would have to leave the house uh there and then potentially, and it's one where they haven't had the opportunity to be able to put forward their views. And that's why the court would want to know, to give the other person the opportunity to at least put forward their view. Given it's such a recording order. Is it possible for your client to perhaps remain where they are for the next few days or so until the matter could be heard if they are living temporarily elsewhere? Could they stay there for a short while until the unnoticed hearing for the occupation order could be heard. Whereas the without notice, no molestation order, as you can imagine is going to be more common in those circumstances. And with the return date, Flaring Porter, as we said to make sure the response has been given at least 2 to 3 days unless the court has abridged time for service on the return date. If the matter is contested, the court will look to see whether it could be heard uh if there's time available, if not, it may have to be listed for a hearing thereafter. And once any order is made, as we said, uh it would need to be served upon the respondent. They would need to be uploaded or sent to court the uh standard of service to form fl 4115. And what if uh say on the return date, the other person does not attend? That's where what I'll take you to the presence Collin shortly. But this is where you may be invited to court to continue with the order if the respondent does attend. Is the court able to hear a contested hearing? Is it gonna be listed for a contest? Is there a compromise? This is where uh there may well be the possibility of undertakings, for example, whereby the other person provides a promise to the court, uh which uh although you can't get a power of arrest attached to that the effect of that promise by way of an undertaking. Uh has significant consequences if the person was to breach the order of the undertaking. Rather. So, undertakings may be a possibility. Now, this is where it's very important to be familiar with some of the case law that's developed over the years surrounding molestation orders and without notice orders. And also uh to look specifically at uh where we stand uh with uh the President's guidance of July 2023. So there was this case of JM and CZ in 2014 handed down by Mr Justice Mostyn and uh his law, she was very concerned about the fact that there was a without notice, no molestation order granted. Uh but there wasn't a return date listed. Instead, the order provided for the fact that the respondent was to have liberty to apply for a hearing. So they were able to contact the court and invite them to list a matter for a hearing so that he or she could then attend court and put forward their reasons as to whether the order should continue or otherwise. But his lordship said that just simply was inappropriate that did not comply with section 45 subparagraph two and three of the Family Law Act because in fact, there has to be a inter part, a return date basically very soon after that without notice, hearing Libby to apply did not satisfy that provision at all under the act. And his lordship re emphasized this point in a later case there was a case of RW 2016 where once again, his lordship was very concerned that this provision was not being followed and courts were not listing return dates when they were duty banned uh to do so. And the other point his lordship emphasized was that uh not only was the President's guidance at the time of 2014, not being followed, but also the fact that without no disorders are the exception, not the rules. So these should not be granted routinely. These should be more the exception. So it's not so much. Why should disorder not be granted? It's more why should disorder be granted? What's the criteria is section 45? So paragraph two made out to therefore require exceptionally fully order to be made on a without notice basis. Now tied with that more recently, uh there was this case of Ds and AC this was handed down by Mrs Justice leave uh on the 29th of March 2023 in the family court. And this is whereby her ladyship has once again emphasized the fact that without no orders are the exception rather than the norm. And therefore without no orders should already be granted with a strict criteria under section 45 of the act are made out. And this is where her ladyship once again has uh identified and also re uh remind us all about the criteria under section 45 subparagraph two. So you remember I mentioned this earlier in the previous session, whereby to seek an order without notice, you need to be satisfied at least one of these criteria. So, is there a risk of significant harm to the applicant to a relevant child if the order were not made immediately? So what evidence is the recent abuse? And what is the risk of this really repeating itself, which warrants therefore not to be made uh without notice? Is your client likely to be deterred or prevented from pursuing the order if it's not made immediately? So, is there that provision? And thirdly is the respondent to deliberately evading service in these circumstances? And will your client or child be prejudiced if the order were not made in these circumstances? Now, her ladyship did say that when one is then looking at some of the case law that's developed over the years and also looking at the Family Law Act. Uh this is where although without no disorder, the court must therefore be satisfied that there's a risk of significant harm if the order were not made immediately or are they likely to be deterred from applying? And therefore, these orders should only be made exceptionally with proper consideration for the rights of the absent party because after all, they haven't had the right to be able to attend court yet and be able to put forward their reasons. So these orders should only be granted exceptionally if there is very good reason to do so, and the court should use their foots powers under the Family Law Act with caution, particularly like I say, it's if it's a one sided hearing uh or maybe on a paper consideration without the other party having notice in those circumstances. And uh her ladyship did say that it's important therefore, for all concern to note that a without notice uh order, if it is granted should only therefore be made in exceptional circumstances where there's at risk of significant harm. The statement in support must expressly deal with why it's exceptional and why it's significant risk is alleged. And her ladyship did say there are far two applications that are being made with a reasonable basis to grant the order without notice who has not been made out. So again, very, very important to bear in mind these key principles of these judgments. Now that then brings me on to the more recent president's guidance that has been handed down. This guidance has replaced the one that we had previously of 18th of January 2017 by the previous president, Sir James Mumby, which then that replaced the guidance that we had in October 2014, which was then issued also by the previous president. So this is the more recent guidance and this is therefore the one that you should be following. The one of July 2023. This has obviously superseded uh the uh the previous one. So what I've done, I've put together some of the key principles of this, I haven't put it all here for you because it is quite a lengthy document. And obviously, you do need to ensure that you do read all of it. But I do want to pick out some of the key points for today's uh purposes to, to assist you going forward. And one of the things the president did say, uh he said that uh the number of applications for family law injunctions has steadily been increasing and has risen by about 50% over the past decade. So obviously, there's been a massive uh increase with these. And alongside this, the law relation to domestic abuse has continued to develop. So clearly, this has caused a lot of challenge and for the judiciary in terms of limited resources. So looking at some of the key paragraphs within this guidance, you can see paragraph five, for example, here, what his lordship is emphasizing is this um when one is applied for these orders, it's very important to make sure that we have a modern understanding of domestic abuse as set out within domestic abuse after 2021. So if one is relying upon say controlling or coercive behavior, we need to be clear about that psychological abuse and marginal economic abuse. So it may be that there is a pattern of coercive or controlling behavior. And one of the reasons why 1 may be seeking an order without notice could be this let's say you're for the client and say he or she applies for the order on notice or the hearing is going to be heard next week. In the meantime, their partner or ex partner now may as a result of the coercive and controlling behaviors as they have been subjected to your client to may coerce them further to withdraw the application. And clearly that can then uh mean that they may not pursue it. And that could be a reason why your client may therefore be deterred from proceeding with the application if it was not heard without notice. So you can see this is a key reason why the order may therefore be sought without notice. Uh His lordship also emphasized the fact that uh even though the Family Law Act doesn't establish a test of exceptionality. So even though it doesn't say that without notice, orders are only to be made exceptional. Remember, that's where the case law has said that case like our 2014 and also the DNA C case of um Ds N ac case of 2023 by uh uh Mr Justice Levin. Um His lordship has said that the order should only be made without notice to the respondent in exceptional circumstances. Um Orders made without malti should not have the effect of barring a respondent from their home or place of work or other location without very careful consideration and specific uh justification for that because it's a significant infringement obviously of the article rights and therefore very much uh need to ensure that it is exceptional. Now, what about the actual hearing itself? Well, paragraph seven goes on to say where an applicant sees an initial order to be made without notice, the court may hold a without notice hearing. It could be attended. Of course, as you know, uh many of our hearings now are back to attended hearings, although some are still taking place uh remotely so it could be either. But of course, it's also possible. His lordship said that the hearing that takes place may in fact be done on paper. Uh And that's whereby the judge reads the application, uh that's made on paper and then decides whether to grant the order or not. And of course, a judge on that basis may then if satisfied that the sufficient evidence there is made the order if it's just inconvenient to do so. But one of the things in paragraph eight that the President has stated is the court should not simply dismiss a without notice application on paper. So if say there is an application, a judge reads the papers and decides he is maybe thinking that the criteria are not made out, then that's where the court has the options. They can either make the order in terms sort or they can make an order in the terms that they seek appropriate or rather than dismissing them may actually want to hear from the applicant or maybe from the lawyers. And therefore, it may be that they seek further information so that may be sought to get basically the full picture in those circumstances. So that the full representation may be made whether on a, at a remote hearing or at an attended hearing as the case may be paragraph nine, then goes on to say that in all cases, when a court does make an order without notice, it's very important to ensure uh that the respondent does have the opportunity to make representations as soon as just at a full hearing. And therefore, uh they should attend in those circumstances. Uh And um with that line, the return date should ideally be within 14 days, which is what the previous uh guidance said. But realistically because of the volume of work, it may be that target of 28 days is all that can be achieved. So what I would suggest is very, very important when, when you're pursuing these orders, uh and you're pursuing an order without notice, it's very important that uh when you are seeking an order without notice that when the court does give you a return date. Well, firstly, the court must give you a return date and when they do, you must make sure that if it's not within 14 days, it should really be within that 28 day period. And if not, you really do need to be asking the court whether that is, in fact the earliest date that's available because otherwise you can see it's very much falling foul of, uh, these provisions. Paragraph 10, then goes on to say that experience shows that a substantial proportion of respondent may not attend a return date. Uh, and, uh, this is where I, if that's the case, then it doesn't mean that the return date has to be before the same judge or the same level of judiciary as who heard without no disorder. But there has to be a return date. It's gotta be fixed and it's gotta be set out on the order that's made. So the respondent is clear as to when that uh, returned aid actually is listed for uh, paragraph 11 and goes on to say that return dates should be in person where possible subject to court's direct discretion, of course, to order a remote hearing. And it's acceptable for the court to explore that return date with the respondent. Whether they are prepared to submit to an order. Sometimes they may submit to, uh, say a no molestation order, occupation order being granted with no findings so that could be done. And if so, the order should then very much reflect that as the case may be because sometimes it may be that the court is going to be guided and make the order on that basis. Uh Paragraph 12 does say that without notice, order must have a fixed end date which should clearly be set at and on the on the face of the order. And uh without notice order itself, it may be made for some time. So even though there must be that return date, as we said, ideally within 14 days, if not certainly within uh 28 days at the most, the actual initial without notice order may be made for longer. It may be made for say six months, even 12 months if do we say ongoing uh abuse and there's maybe a pattern of abuse. But like I say that return date, the president says has to be uh within uh that uh 28 days at most paragraph 15 and gives a very useful uh short form standard order which is available. So many of you will be utilizing that and it's um uh it's annex one to this guidance, which is very, very useful. So you should be following that and using that. And also paragraph 15 tells us that when some of you who are pursuing these orders, if your client is publicly funded, and of course, you will be want to be set out in that document. Uh the um family advocacy scheme wording for your attendance and directions for the next hearing uh in terms of the provisions in relation to payment, but those provisions relating to the Family advocacy scheme, wording and directions for next hearing other than when the matters listed and, and time and the venue that should not appear in the body of the injunction order that should be in a separate annex or in a separate case management order. So that it's clear for the clients as to the specific parts of the order that really relate to them, the injunctive orders obviously need to be proportionate. Uh So it's unlikely to be appropriate to bar all communication particularly if there's Children involved. Uh So therefore, it may be that uh the, the, the the other party is not permitted to communicate with your client or them for the purposes of maybe communication, them for the purposes of arranging uh contacts. So that may be appropriate. And also the president has said that if you are, if your client, he is seeking an occupation in order to not only require a respondent from v to vacate a property, but also to exclude them from a geographical perimeter around the property, then you should avoid putting words such as 100 m. You should even avoid attaching a map because those could get detached. It's better to uh actually put the street names and the roads uh that you want to prevent the person from coming within. Of course, if you are going to be attaching a map, it's got to be then embodied within the body of the order to stop it from getting detached in those uh circumstances. And uh you've also got the provision in paragraph 19 which says that uh phrases such as lips to apply are simply uh ineffective. There has to be that return date set out. Uh and uh therefore very, very important for the order to spell out that. Uh but of course, the order also has to spell out the fact that the respondent can apply uh for the order to be satisfied or varied even before the return date. And if that is the case that the court should list it as a matter of urgency. And uh if the order is made without notice, it needs to specified that it's made in the absence of the respondent, the court only heard evidence from the applicant. The court has made no findings of fact in that regard. And exceptionally say you've done your empty and support and say you're at court and your client provides you with say additional information, maybe they've received a text or photograph when the other person is may be threatened them and you want to reduce that as evidence as well. At that hearing, it's very important to ensure that that is recorded and on the face of the order or reduced to writing. So at least a respondent is fully aware then of the information that was relied upon and referred to for the purposes of uh the order then being made and in terms of undertakings, these are promises then which the respondent may then give to the court in so far as an accepting any undertaking. Uh The President's guidance does emphasize that uh we have to have regard to section 46 3 A of the Family Law Act so that the court should not be accepting an undertaking under subsection one. Instead it should be making anomalous station order where firstly, it appears to the court that the respondent has used the threat of violence against the applicant, a relevant child. And secondly, for the protection of the applicant or child, it's necessary to make an ominous station order. So that breach of that is then punishable by way of uh criminal proceedings. So you can see there are restrictions aren't there as to when the court can even accept undertakings. And therefore, it's important to uh to bear that in mind as well. Paragraph 22 then goes on to talk about the fact that in terms of personal service of these orders, that's the starting point. It may be a call bail if he says it may be a process server. Uh there needs to be a certificate of service filed at called the form fr 415 to confirm how a service was affected. And um of course, if uh there are situations where personal service cannot be affected, then in those circumstances, the matter could be referred back to a court in the court and to service through other means as well if appropriate. And uh let's say there is a without notice, order made and you do turn up at the return date and say the respondent doesn't turn up as long as he can then confirm the court that the respondent was served if the order is unaltered. So the orders already made for length required, then in those circumstances, paragraph 24 doesn't require uh, the uh respondent to have to have to be personally served. Once again, the order could simply be posted to them in those circumstances. Ok. So there is that and um when there are return dates, paragraph 26 you can see emphasizes that the respondent does attend. It may be helpful to record on the face of the order that the court had explained the terms of the order and that the respondent did understand uh the terms of the order in those circumstances. So you can see there's a number of key factors within this guidance, I would suggest obviously have a for read through all of it. But this sets out some of the key elements that you need to be familiar with as far as the President's guidance and obviously dealing with these orders going forward into 2024 and onwards, we need to ensure that this guidance therefore is fully followed, going forward. Now, let's then look at the position with enforcement of these orders. So if there is anomalous station order or uh say an occupation order of both, how do we deal with enforcement of these? Well, let's take the criminal sanctions first. So if we look at the anomalistic order first and this is where there were some provisions that came into effect on the second of July 2007. This is effectively section 42 A which was written into the Thy Law Act of 1996. And basically what this provides for is the fact that if there is anomalous station order granted, then breach of that is, is as from that date, a criminal offense. So because of that, because of this provision that came in some years ago, it's no longer necessary for you to be invited the court to grant a power of arrest to the normalization order because it's automatic because this provision as from the first of July 2007 allows for that. So that if the person was then to breach the normalization order, uh then they could be arrested without the need for a warrant, they could then be prosecuted and this is where uh they could be sentenced. So, uh in the uh uh on Sunday conviction, they could be fined or sent to prison for a period of 12 months without indictment. Uh, they could be fined and a maximum prison sentence is actually five years in prison. So you can see that breach of Anomalous Station order is a criminal offense. And therefore, you don't need to be specifically asking for a power of arrest to anomalistic order because you'll get it automatically. However, in relation to the occupation order. That's not the case. You don't get a power of arrest attached automatically to those. And therefore for those, you do need to be asking specifically for the um power of arrest to be attached if a pro for it and the criteria that the court need to consider in deciding whether to attach that or not is under section 47. And this is where if the court makes the occupation order and if it appears to him that the respondent has used or threatened violence against the applicant to a relevant child, and the court shall attach a power of arrest unless they're satisfied in all circumstances that is not uh required. And the benefit of a power of arrest is in the event of an alleged breach. So let's say you're for the applicant where there is an occupation order, the respondent does turn up to the house when they shouldn't have done that in those circumstances. The effect of the power of arrest is the res the police can an arrest without the need for a warrant in those circumstances. If they have reasonable grounds to suspect that the order has been breached, they can then bring the person back before the family court within 24 hours of the arrest. Uh The the person could be remanded, the person could be on bail and this is where you can then pursue committal proceedings if appropriate, pursued to section 37 of the uh uh family procedure rules. And if you are going to be pursuing committal proceedings, then this is where the court has various options. They can subject to the nature of the breach. They can impose an immediate prison sentence on the person if, if that was approved at all. Oh, that's not common. In many cases, they could suspend so they can make a suspended order that if they were to returned to the court in the future with another alleged breach and that was found and they may be sent to prison next time they could be fined. There could be a fresh injunction, a more detailed injunction, there could be a power of arrest attached to an occupation order if that wasn't beforehand. This case of Hale and Tanner emphasizes that there are therefore various options available to the court. Um, custodial sentences are not necessarily going to be the preferred option if, if on a first breach, but it does obviously depend on the, on the circumstances. And if you are going to be pursuing committal in the family court for alleged breach of these orders, it's very important to make sure you're complying with the family procedure as part 37 which is a committal application. The form you need to be completing the is the form FC 600 together with sword evidence and support setting out the, the basis and the uh the instance of alleged breach. Uh You need to satisfy the court beyond reasonable doubt, the application notice needs to be set out in full, the grounds upon which the commercial application is being made. You need to set out separately and numerically each alleged act of contempt. And uh the application needs to be served personally upon the respondent unless the court dispenses uh with that. And as I mentioned, there are undertakings that the respondent can give at any return date. Uh These are form of promises which are given to the court but breach of undertaking uh does entitle one to they also then go for contempt. And this is where you may then be pursuing a contempt application for breach of an undertaking. So it's very, very important to therefore bear that in mind as well if appropriate and you can't attach powers of arrest to undertakings, ok? So that brings us to the end of this session. So you can see we've covered a fair bit and in the final session, I'll be taking you through the protection from harassment, tactile alternative applications and then we'll have a look at domestic abuse protection, Odyssey and orders the use of Qlrs in particular and some of the other developments. OK. So I'll speak to you soon. Thank you very much. Bye for now.
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