Hello and welcome everybody very pleased to welcome you to today's session through data law. My name's Safta Mahmood. This study session 2.2 and therefore the final session of the three part three hour course looking at injunctions and domestic abuse orders, current law and practice. And as you know then the last two sessions I've covered. Session one and then the last one which was 2.1. I spent some time going through with you a fair bit on the matter relating to the various forms of orders that available when you're dealing with applications for personal protection orders under the Family Law Act of 1996. I went through some detail with you in the last session in particular over the procedure for pursuing normal station and occupation orders. I spent some time going through the position with the F. L. 401, the application form and also the F L 401 T the template which has become available as of november 2021. And also we spent some time you remember going through the procedure also. So today that's what I'm going to do is I'm going to be continuing with looking at some of the other aspects of pursuing non molestation and occupation orders. And we'll look at the practice guidance which was put together by the president of the family division and updated back in 2017. We'll have a look at that. Well then spend some time looking at enforcement. So I'd like to spend some time and going through enforcement of normal station and occupation orders particularly when it comes to criminalize decriminalization of breaches and also the position with the use of powers of arrest. And then we're going to be looking at other methods of providing personal protection and seeking protection, such as CSC orders to child sexual exploitation orders, orders in public Children or cases and also the use of the protection from harassment tax and spend some time on that also. Okay, so with that in mind then let's have a look at where we are and always as always are putting a copyright acknowledgement here for you. And I'm looking at the laws of June 2022. So duration of normal station and occupation orders. So I discussed with you last time and the fact that these orders can be made in existing or as free in freestanding family proceedings. And insofar as occupation orders are concerned as to the duration of dollars. It does depend on which section you're applying under. So if you're applying under, say section 33 of the family worked on the basis that your client has the right to occupy, then the order can be made for longer than six months. For example, if needs be was for some of the other sections that you may apply and then you can only get the order for six months. So it does vary depending on which section you're applying under insofar, as number of station orders are concerned. These can be made for a fixed period of time and as you'll see, the guidance of january 2017, That's really the recommended process. But it is possible to get longer term orders. And indeed even indefinite orders will be. That's more the exception than the norm. What this case of J. M and C. Z tells us this case handed down by Mr Justice Mostyn, was that if you are going to call for a without notice order and often it's going to be without notice, anomalous station or maybe seeking, then it's necessary to have a full into parties hearing very soon after the without notice hearing and granting the respondent liberty to apply for such a hearing is just simply not enough. Okay, so that won't be sufficient insofar as that's concerned to do this, you need to have a into parties hearing very soon after without notice hearing. And this was then put together also in the practice guidance by the then President of Family Division, Sir James Mumbi, uh And that was kind of put together in 2014 and it was updated in january 2017. So, this is the most recent guidance, which is the practice guidance. Family court duration of ex party, without no disorders of 18th of january 2017. So, let's go through this and see what somebody key elements are. So firstly, then what his lordship said, is that the next party or without notice orders, it's probably referred to injunctive order should never be made without limit of time. There must be a fixed end date. Okay, very important. It's not sufficient to merely specify return date. The order must specify on its face and clearly when it expires. Okay, So that's the first thing. Secondly, it must also fix the return day. So it must best for the date, the time and the place of the hearing on the return date, And it should normally be no more than 14 days after the date when the order was made. The case of very, very important. So, if I'm going to court today for a without notice non molestation order, the return date should be no more than around 14 days after the date may be made. Such that the return date is sooner than that, but it shouldn't be beyond that. Okay, and again, this is because this needs to really comply with section 45 sub paragraph three. Where if a without no disorder is made and it should be considered by the court as uh as soon as is practical to make sure that the respondent is given the opportunity to be able to attend and give forward his or her views as to whether they are conceding to the application and the order for it to be extended, whether they're contesting whether they're offering an undertaking, for example, So, and therefore that determination has been made very soon thereafter. The other thing, his lordship did say is that how long the hearing on the return date should be listed for? Must be a matter for discretion for the court of course, but a very short hearing may well be appropriate in some cases. And I think many of you will know that the return date when it is listed, it may be listed for, say 15 minutes or so, so it may not be for very long. And I think what it depends on is what view the respondent may well take. So if he or she does attend the return date there may be offering an undertaking, for example, that may be able to be resolved at that hearing there and then it maybe they don't turn up. In which case the court may just simply extend the order allowed the order to remain as it is. If it's made for a longer period of time, it may be that if they do turn up they wish to contest in which case the court ordinarily in most cases wouldn't be in a position to be able to hear it there and then and they may have to list it for contested hearing and then look at what evidence needs to be timetable in readiness for that. All right, so you can see these are the type of things that we've got to be thinking about. The terms of the return date And in terms of the duration of the order made without notice. His lordship did say that many orders typically will be no longer than 14 days, which will then coincide. Which of course the return date. So that may be made for no more than 14 days. But in appropriate cases involving personal protection, some may need to be made for longer than that. Such as maybe six months or even 12 months in some cases, but provided and is to keep it provided that the order specifies the return date within normal in 14 days. Very, very important to make sure that even if the judge takes the view that look, I'm going to give you a six month order because Uh there's been long term abuse here or for some of these other reason, even if that's the case, even if you get a six months, 12 months order and without notice hearing, there must still be a return date no more than 14 days later. Okay, it's a very, very important to bear that in mind and appeared shortly. Six months. Maybe appropriate way. Maybe it's a one off problem that made in subside in a week rather than months. So, it does depend on the circumstances in terms of the length of order that's made. Then the guidance goes further. So you can see here, it specifies the fact that the order must make it clear that it was made in the absence of the respondent and the court only consider the evidence of the applicant. Ok, So it's made in the absence of Hence clearly without notice and only the evidence of the applicant was considered. And thirdly, the fact that the court has made no findings of fact. And I think that's very very important and we have to bear that in mind that if without no disorder is made, it's obviously made on the basis that the court only heard from one of the parties. No findings have been made because of course the respondent hasn't been given the opportunity to put forward his or her views at that hearing. Okay. I think it's important that I've seen sometimes people who have drafted statements and have said that without notice order was made and that showed that the respondent has behaved in a particular way and I think it's very important for them to make it clear that yes the order was made. But of course it was without notice. And all findings were made. Now where the evidence is written it must be identified in the order and were exceptionally, the court has received uh other evidence such as made with photographic evidence that should be recorded on the face of the order reduced to writing conservative the order. And this is very very important also. So if for example you're going forward without notice order as I discussed with you last time we spoke about the F. L. 4 to 1. I spoke about the F. L. 4 to 1 T. Spoke about the state to support so you never filed and uploaded otherwise your evidence in support. But of course it may be that as you say, you're going to court assuming the same person hearing. There is further information that's made available by a client. Maybe there maybe further threats that may that may be a photograph that the provider or the text message or something. And you may wish to reduce that as additional evidence which if the court does allow and you can see here the guidance does exceptionally but if the court does allow that, it's got to be recorded on the face of the order reduced to writing and circled the order. So it's very important for you to make sure that the respondent is aware of this additional evidence that was reduced and therefore the older basis upon which the order was granted. Okay. And again this ensures them Compliance with Article six of the European Convention. In terms of the right to a fair trial, 1.5 says where the order has been made in accordance with part four, it must decide on the court with regard to sections 45 1 45 to E. That's a bit about the court being satisfied that the criteria for making the order without notice were met and therefore the reasons I. E. Is it because there is a risk of a significant harm to the applicant or child if the order is not made immediately or if you're quite likely to be deterred from applying if the order is not made without notice. Or is it a case where the respondent is deliberately evading service, for example, and your client's welfare. Is that prejudice? So you've got to look at which factories which justifies the court decided to make the order without notice. Then the practice guidance goes on to say that the order must then contain a statement of the right for the response to set aside or vary the order. Okay, so the phraseology liberty to apply just simply not enough. It's got to be more than that. And as you know, this is where case like we w case by Mr. Justice must emphasizes this point that that phrase liberty to apply just simply does not comply with the requirements under the Family law, family procedure routes the order must spell out that the respondents entitled without waiting for the return date to apply to satisfied or vary and if they do so that the respondent does contact the court does wish to apply to set aside or vary the order. The court must enlist the matter as a matter of urgency within a matter of days at most. So, I think that's really, really important because again, that sometimes forgotten and people are not clear about that. Okay, then the practice kindness goes on to say that experience suggests that in certain cases such as normal station or the orders granted according to the correspondent frequently neither applies to set aside to vary or doesn't attend the hearing. And of course that may well be the case, but nonetheless, there's still a need for that return date, as you know. And whereas in this case there is no attendance by the respondent and the order having been served doesn't require an amendment, then there's no need to reserve it. So I think that's important. So if I therefore did a without notice application and we got, say, three months uh normal estacion order and and the return date was 14 days later. If we turned up, we are able to confirm to the court that the response has been personally served but has decided not to attend. Then here, I can rely upon this kind is to say that we're not seeking any amendment to the order and therefore there's no need to reserve in that way. Okay, the order should simply record that the respondent also afforded the opportunity to be heard, has neither attended nor sought to be heard. So, I think that's what's important and therefore need to emphasize that insofar as this is concerned. So, because of this guidance, you concede practice obviously has had to change quite significantly and quite rightly and this was something that was referred to in this case also re w. which follows on from the other case of J. M. I mentioned earlier that Mr. Justice must be dealt with. And this is one where re w this 10th of august 2016 decision. His lordship was concerned about the fact that without notice, normal estacion order guidance by the President had simply not been followed. So that was the guidance of 2014. So this was a case whereby an order had been made for a period of one year. It provided that the order will be considered at a return date And to be fixed by the court and request. So you can see this was not complying with what Mr Justice must have said in the case of Jamon sees that 2014 decision and this wasn't complying with the president's guidance of 2014. So you can see very very significant concerns about failure to comply with that guidance. And secondly, his lordship said that without no disorders are the exception and not the norm. So it's important to bear that in mind also, Now that, as you know, the year after then, there was the guidance put together by the president in January 2017. Now, the next provision that I wanted to go through with you today is the length of normal station orders and open ended orders. So, should we be making open ended normal estacion and potentially even occupation orders? Well, this is what a case of Mandara and shape comes into effect. It's 2020 decision handed down by Mr Justice Cub sitting in the high court of justice. And the question here really was should be without no disorder. That had been made for a normal station order which had been made to continue, definitely. Should that remain, or should it actually be set aside and going forward? Should orders of that nature even be made at all. And whilst the orders were expressed to be begin from the time that respondents made aware of the terms of its order, there was no provision for its expiration. So, the order was made by applied for by wife against husband. And the husband applied to set aside the normal estacion order some three years after it was made, obviously, sometime thereafter. And his argument was that there were changes circumstances. He and his former wife had moved on. No need for the order. And obviously by having it and they was potentially prejudicing his position. So he sought for it to be set aside. And the question then, his Lordship had, was can and does in fact, Section 42. Subsection seven require finite order to be made. Should these indefinite orders not be made at all? Well, this is where the case of them against w normal station or the duration of 2000. Looked at this case of re BJ a child molestation, or the power of the rest of 2000. Which did say that actually it is possible to make indefinite orders. And without a fixed duration. But then you contrast that with the President's practice guidance of 2017. Where as I've just taken you through one of the first things that the President did saying that guidance, is that any order that's made without notice must have a fixed end date. So you can see here, BBJ in particular was conflicting with the President's guidance insofar as that is concerned. So, therefore, where do you go with this? Well, this is where we suggested did say a paragraph 23-24 of the judgment that good practice would dictate that it is in fact contrary to common good practice of the family court. An unusual in fact, for a non molestation order to have been made without limit of time. It is therefore rare for any application for discharge of no more to be issued many years after the date of the order. So you can see it is contrary to good practice to make it without limited time. So it is possible. But as you can imagine, it's going to be somewhat not common at all in these circumstances of case, it's very, very important to bear that in mind. Right, What I'm now going to be doing is I wanted to spend some time going through with you somebody criminal sanctions to start off with. And then we'll look at the civil sanctions insofar as breaches of these orders, just to be able to pull together where we are with that. So let's look at the criminal penalties first, in terms of enforcement of part for the Family Law Act in 1996 orders. So this is where we look at normal estacion orders, then this is where we need to think about a domestic crime and victims act of 2004, which brought in the Section 42 age. The family worked back in July 2007. And what this provided for was the fact that a person who without reasonable excuse does anything which he or she is prohibited from doing so by anomalous station order is guilty of an offense. Okay. And a person can be guilty of the offense, only respect to conduct engaged at a time when they were aware of the existence of the order. So actually, for the police to prosecute here for the CPS to prosecute, they don't have to be satisfied that the respondent was personally served with a non molestation order for them to prosecute here, it says as long as they are satisfied that he or she was aware of the existence of the order in practice, they would want to be satisfied, understandably that the respondent was aware of the existence of an obviously personal service will ensure that. But if they were maybe notified through other means, maybe a text message was sent or maybe there was a discussion between them and maybe the applicant to otherwise, then if the police are so satisfied, they can then prosecuted on this basis. If they so which and a person is prosecuted and convicted of an offense under this, then that's punishable as a contempt of court. So it was punishable, I should say as a criminal offense, and therefore it's not punishable as a contempt of court. And what I mean by that is that you can't then have what's called double jeopardy. So you can have a situation where for the same actions, the person is prosecuted and convicted on the defense, the criminal Court and one also applies for contempt of court in the family court under contempt of court Act of 81 seeks a committal order by way of imprisonment for up to two years. Because you're effectively punished a person punishing person twice for the same act. So you can't do that. And similarly, a person cannot be convicted on fencing in this section, in respect of any conduct which has been punished as a contempt of court. Okay, so it's important to bear that in mind. So you can't be punished by way of having penalties imposed twice for the same conduct. Having said that if of course, the police do decide not to prosecute and it doesn't prevent the applicant from pursuing a committed application and vice versa, if needs be, if one is then prosecuted then on entitlement to maximum penalty in terms of of prison sentences five years as well as the fine and on summary conviction is 12 months maximum, and define it needs to be okay and what the domestic violence crime and victims act did. It made a breach of anomalous station or the commonest an arrestable offense. And it removed the need therefore to apply formally for power rest phenomenal station orders and therefore that is automatically attached to normal estacion order. So therefore we don't need to be applying for that, but it does retain the need to apply for any power of arrest to an occupation order. That's where we stand with that. Now, with that in mind, what I would suggest therefore, is in relation to his criminal sanctions and this are particularly relevant and to normal estacion orders and what's in the position with occupation orders. Well, this is where then if you do wish to seek the power of arrest, you do need to apply for it. And this is where it's very important therefore, to specify the application and also in your statement of support as to whether your client is or is not seeking a power of arrest in the circumstances. And this is where the stated support does need to make clear as to whether this is being sought and the circumstances surrounding this. So, when will this be attached and what evidence with the court and the need to take into account in deciding whether or not to attach the power of rest. Well, this thing comes into play pursuit section 47 of the Family Law Act of 1996 and this states that an order may be enforced by way of a power of arrest and under Section 47. This can be attached to firstly the court makes a relevant order, i. E. The occupation order been discussing. And secondly, if it appears the court that the respondent has used or threatened violence against the applicant relevant child, then in those circumstances the court shall attach a power of arrest. Okay? But you can see here, it says unless it is satisfied that in order circumstance of the case, the applicant will be adequately protected without. So, therefore, what you need to be able to show in these circumstances is that the court makes the relevant order I. E. D. Occupation order. And then it appears the court that the response has used or threatened violence against the applicant. And the court is satisfied that the court should in those circumstances be attaching the power of arrest unless, like I say, they feel that the applicant and relevant child will be otherwise adequately protected without it. So, it's important to look at that to see whether that is the case or not. And with that in mind, what we need to then think about is insofar as the power of rest if it is attached, what does it actually do in practice? Well, it gives them the police the authorization to arrest without any for warrant, anybody whom they have reasonable grounds to suspect has been breached the provisions to which the power of arrest is attached to. When you're drafting, as I mentioned in the last session. Very important for you to be clear which parts of the occupation order are you wanting the power of the rest to be attached to? It may not be all elements of it. So, for example, if the occupation order relates to the fact that the applicant is permitted to retain returns to family home and of course, you're not going to want to power rest to be attached to that element. If the occupation order relates to the fact that the respondent is required to vacate the former home and not to return or attempt to return, you may want to power rest attaching that that part. If you want to respond to be prohibited from coming on to certain streets of roads joining the property, then you may wish to power maybe to be attached to that part. So you have to be clear about that. And obviously to get the order pursuant to section 47, you do have to show that there's been violence or threats of violence unless the court feels that the applicant will be adequately protected without the need for this, It's the power of arrest is there. And if the person is arrested, then a respondent must be brought to the court within 24 hours of his or her arrest. And if not dealt with at that stage, that the court is entitled to remind them in custody. If needs be. So let's say then you've got a situation where you have got a normal estacion order was granted without notice and say you've got that that's granted. You're then gonna return date saying about seven days time and then you return. You attend on the return date. The respondent has been personally served with the application for the normal station occupation and all sort of without notice. Normal estacion order that was granted. You come back on the return date respondent does not attend. The court decides to makes a six month station order and grants your client horse order a six month occupation order for the respondent them to vacate the property and for your client to return to the property. So let's say the order is served upon the respondent, they do vacate. But then a few days later your client telephones you and says that the respondent returned when they shouldn't have done, the police were called and that's where the police were arrested because the power of arrest was attached And they made them bring the court the respondent and like I say, within two the court within 24 hours. Now this is where the police can prosecute if they so wish if they feel there isn't a criminal offense which has been committed or has been a process of or they may not. And this is where they made them bring the person back before the family court like say within 24 hours and that's when you don't need to think about committal. So are you then instructed now to apply for committal to prison or other penalties as a result of breach of the occupation order. And if so this is what's important for you to get your funding sorted out. So does your client need to have public funding in which case you need to extend the scope of your public funding is difficult to cover committal application with your client paying you privately. So obviously those factors need to then be looked at as well. And let's say you do then bring the matter back before the court and this is where you pursue a committal application. This is where you have to be doing that pursuit. Section 37 of the family procedure whose of 2010 whereby you'll be then bringing a committal application and there is a form that you need to complete called Fc 600. So it's called F. C. 600 which became available at the end of july 2021 so that we completed together with the stated support, setting out the basis upon which it is alleged that the Person has breached the order and you've got to set up numerically the various instances in which it is alleged that they breached the order. The FC 600 is a very detailed form and it needs to be filled inappropriately. The respondent needs to be personally served with the application unless the court dispenses with the need for personal service, they need to be given noticed and of course of the hearing and then when you do attend the hearing will be in public unless the court says otherwise and the onus is upon the applicant to prove beyond reasonable doubt that the person has breached the terms of the occupation order. Okay? So therefore it's a criminal standard which will be applied in so far as saying whether or not one can establish the breach. Now, there are various powers available to record in dealing with any committed application. You can see here that there are a number of options. The court can for example, impose an immediate prison sentence that I can do that and a maximum prison sentence for contempt is two years, they can make a suspended order. So they can say that we're basically going to be suspending and the way that works that is, they can say we're making a suspended order whereby the person will not be in prison today, but instead it's a suspended order so that if they then are brought back before the court saying the next 12 months for alleged breach of the order again under court finds against them, then the next time the court may send them to prison for a period of time, they can be fined, It could be a fresh injunction made. If the previous injunction order was not clear enough or maybe wasn't defined or comprehensive enough, it wasn't as tight as it should be. It may be that the person breached an undertaking for which now they've been committed, in which case the court may make an order as opposed to rely on just the undertaking. It may be that the court previously didn't have a power of arrest attached to the occupation order and that's where they may attach that Now, because of course, even if you don't have a power of arrest, it doesn't mean that the police cannot arrest. What you would need to do then is if the police feel that there is sufficient evidence to show that the prisoners breached the terms of the order or maybe committed any offense, then they can obviously arrest in their own right. But if you do wish the police to arrest the responded to the event of alleged breach of an occupation order for which there is no power of arrest, you are then required to formally apply for a power of so far warrant for them to be arrested and then to be brought back before the family court to enable them to go for committal proceedings. That's the way that should be done. If it needs to be okay. Now, this is where the case of Helen Tana is useful because this has said that it proceeds for contempt the court to consider a number of factors before they decide to impose a sentence of imprisonment for the breach. So the court does need to consider what other options are available in this regard. So, therefore finding the person like making a fresh injunction order, maybe attaching the power of arrest may be making a suspended committed lord, if needs be. So, as you know, the court has to consider other options in this regard. Now, in terms of undertakings, let's say, the respondent, as I discussed with you previously, does attend the return date that have been personally served to attend the return date. And one of the options is there may then be wanting to offer to the court and undertaking. And an undertaking is a promise which is given to the court is not promise to the other parties to the court where they are promising to do or not do something. And there are many advantages of this. And Akira is by giving an undertaking to a quarter of the court, so accepts it. You're then promising or your client is promising not to do something or he's promising to do something. But the advantage is one. There's no findings of fact made against them. Okay? So there's no findings made at all against them in relation to the allegations that were made against them by the applicant. So, there's no admission or findings made. And I think that's important because that will then help them going forward, particularly if there's related Children proceedings. For example, then it would not be permissible then to refer to the fact that the person gave an undertaking on the basis that they had been violent or had subjected to abusive behavior. There cannot be that reference to the fact that there have been violent or abusive because there's been no findings made and there's been no admissions on that. Of course, one can refer to the fact that there were allegations which is different. But secondly, it's important note that enforcement of an undertaking can be dealt with in the same way as breach of an order. So often an undertaking of the court soul accepts it, which may be in exactly the same terms as the auditor was sought is not, I would suggest there's a lighter touch in any way in that regard, because breach of an undertaking still allows the police if appropriate to think about criminal proceedings if they so wish. Yes, it doesn't give them the automatic right arrest. It doesn't give them the to write to arrest because it's not an arrestable offense and therefore it doesn't give them the right to arrest without a warrant for breach of undertaking. So it's that which is a drawback, but if they do decide to arrest because they wish to go down the criminal route and that's of course possible. But also if the person then is found to have allegedly breached the undertaking and they are committal proceedings brought, then the court can deal with that in the same way as they would do by way of contempt proceedings for breach or alleged breach of an order. So, therefore, the court can still find they can still in prison immediately for two years. They can impose uh suspended order and they may perhaps make an injunction order with maybe a power of arrest. So, the remedies for breach of undertaking are just as significant and severe, potentially as a breach of an order in that regard. Okay, but as we said, with an undertaking, you cannot get a power of arrest attached down. Therefore, it doesn't give the police the automatic right to arrest in the event of alleged breach of the order. Okay, One of the things also to bear in mind is section 46 3 a. of the family from 1996, which does say that although the court can accept undertakings, the court should not be accepting these ordinarily wave if it appears to court that there's been violence, effects of violence, and Uh and the person would not be realized adequately protected. And instead, that the court should be making a normal station order with the power of arrest attached. Okay, so, bear that in mind. So, that's one of the limitations of the court may not accept the undertaken if it comes within section 46 3 a of the family law until 1996. Now, if you are then putting together the undertaking, it's very important to make sure that the bottom of the undertaking includes the provision to ensure its enforceability. And this is where the undertaking will then have the wording put in my which says that you may be sent to prison for contempt. If you break the promises you have given to court, the person would be required to sign a statement where they understand that the undertaking they've given and that if they breach, breach any of it, any of the promises that they may be sent to prison for contempt of court. So, it's important for them to do that. And this would not need to be signed before the person before the person. Court in person. Uh and even far in a separate document. Although you find that in practice after lifting in court, there will be. But of course, if the hearing has been done remotely, then this is where they would need to be certifying this to the court remotely through that process. So, it's very important that this particular wording is there to cater for them. Understanding what the terms of the undertaking are, And these can be accepted by the court, but should not be accepted with a court would otherwise have a power of rest attached. So, this is where that section 46 3 a comes another mentioned, where the court should not accept an undertaking instead of making normal station or which then has the benefit of the power of arrest attached. Where the court is satisfied that the respondent has used or threatened violence against the applicant a relevant child and for the protection of the applicant or relevant child, it's necessary to make the non molestation order. So that's where that comes into play. Okay? So with committal proceedings, can a person be committed in the absence if they decide not to attend the hearing? The simple answer is yes. Okay. So um has confirmed that as long as a person has been notified, have been notified, served with the application, which may have been been an application which was made whereby they've been served personally unless the court dispense with that and allowed service through other means. If they fail to turn up at the hearing, the court can proceed in their absence. And also, as I mentioned, the standard of proof for these applications is the criminal standard. So, standard proof of breach for establishing breach of an undertaking is the criminal standard. So, beyond reasonable doubt if one is in the family, the family court. Now, one of the other things to bear in mind is when one is seeking occupation orders. Sometimes there is a question mark, as to whether one needs to demonstrate in those circumstances actual violence or threats of violence, and therefore physical violence in this regard. And this is what a case of riel comes into play. So this is really our Children 2012. And what happened here is there were heated arguments between the parents and there were two Children in the household, there were twins, aged eight, there were in the household as was the mother and the father. And they were often heated arguments between the parents. So the mother here applied for an occupation order, seeking for the respondent father to vacate the property. So, as you know, the court will apply to harm test the significant harm test and the court was satisfied that if the order were not made, that the Children would continue to suffer significant emotional harm if both parents stayed in the house and if the court made an occupation order in favor of the mother and therefore for father to vacate the property for a period of some three months. And this is where the father appealed and his main ground of appeal was this? His argument was that in fact the court cannot make the power of arrest so they cannot make occupation order where there was no evidence of violence or threats of his argument was that heated arguments were simply not enough. And this was such a draconian order and occupation order requiring him to vacate the property because of the sheer draconian nature of it. His argument was that there had to be evidence of violence or threats of it because that was not established order should not be made. And therefore the big question for the court was, can the court make an occupational where there's no violence or threats of violence? Well, this is where lead to justice. Black took the view, uh, paragraphs 21 to 22 of the judgment that in fact, if you look at section 33 6 of the Family Law Act, it doesn't prevent the court from making occupation order where there's been no physical violence. In fact, it doesn't specify that there is a need for physical violence. The wording in section 33 sub paragraph six of paragraph seven is the word significant harm? Physical harm is not referred to and it's not required. So, it's very wide. Of course, of course, still needs to take into account all the circumstances. So, you still got to take into account the effect of the order or not being made on the parties and indeed the Children. You've got to see how it's gonna impact on the family and the Children's health safety. Well, ping. So it's very broad in that regard. And therefore whether or not the audition were made, can of course, be relevant in cases other than those involving violence or threats of violence and therefore here, given the problems in the household that could be taken into account in deciding whether or not to make the orders and the fact the court disallowed the appeal. Now, I'm not going to spend some time in going through some of the other remedies that are available. And also some of the other steps that people may then take for personal protection. And this is where the domestic violence crime and victims amendment act of 2012, which came in on two July 2012, brought in this amendment to somebody criminal offenses. So that This amended Section five Domestic Violence Crime and Victims Act, starts slipping into effect the effects of causing or allowing a child of one of the adult to suffer serious harm. So this is where if you've got a situation where in the household, say one of the parents is violent and abusive to the other and in the presence of the Children, and then if the other parent fails to take action, fails to protect, fails to maybe report the other parents, particularly if there's a serious risk of potential harm to Children. And if the other parent then does cause harm to the other two Children, then that the non abusive parent can also be convicted of this offense of causing too allowing the child to suffer serious harm. So you can see it's a very, very significant offense, which therefore one needs to bear in mind. Can normal station orders cover an exclusion provision. That's really one of the other questions that sometimes will be asked. And this is particularly relevant where if you're seeking a normal station order and you wish or your client wishes for you to have a provision in there, which requires the respondent to keep away from the Children's school or maybe from the applicants place of work or maybe the other property that they have, and so forth. So, can you have an exclusion provision element attached to these? That's really what you know this relates to. And the simple answer to that is yes, because insofar as that's concerned, it is possible to have these made and attached to those kind of situations also. Uh And that's where what you might find is that the court can then attach an exclusionary went on a normal station in order to do this. And though there was nothing specific in the Family Law Act which provides for this. Uh And this is where the court can then make an order. Now this is where the court can therefore rely upon some of the jurisdiction relating to the inherent jurisdiction powers. Uh and therefore is the case of seeing k inherent powers, exclusion orders of 1996 as well as C. W. And others against T. W. And others to justify this decision. So it is possible. And this particular case, which is very very tragic. 11 where the mother was killed by the father. The father was serving a lot of time in prison and he was then after some time going to be discharged on license, released on license. The child at this stage was living with a family member. And they were concerned that the father may try and track down the child and try and seek contact and potentially be of risk to not just the child, but indeed to the family members. So the question was, could you have an exclusion order made to exclude the person from coming to the home, which was never intended to or never occupied as a family home by the father and the mother or the child. And the answer here is yes. The judge did say that yes, this is appropriate and possible in these types of cases. So it can be made. And this is where some of you will know you will love the so called zonal order, which will be made, which will then attach itself to the nominal station orders that this can be. But if you wish to exclude the person from the family home itself which they occupied or intended to occupy the family home. And of course, the way to do that is you do need to look at the position with in those cases seeking an occupation orders. It's important to bear that in mind, insofar as how you're going to be achieving that. Now, tying in with the position with the inherent jurisdiction route. This is where I wanted to just spend a little bit of time and reminding you about CSC orders, Charles sexual exploitation order, then there's been a number of cases on that over the years whereby local authorities in particular will apply for CSC orders, child sexual exploitation orders, and the way that works is, let's say you've got a child who is may be subject to care proceedings may be subject to accommodation by the local authority. Either an interim care order or care order or voluntarily accommodated. And the child may be a risk of or has been as a child sexually exploited. And that's where sometimes local authorities may then seek these injunction roots provide inherent jurisdiction. Therefore, three Section 100 of the Children Act, whereby they're inviting accord to grant an order which excludes or rather keeps the alleged perpetrators away from the child. So, if there is sufficient evidence that the alleged perpetrators have been subjecting the child to harm or risk of harm in the form of child sexual exploitation, then these orders could be made to keep the perpetrator away from the child. Now this then ties in with of course, some of the provisions and penalties that are available to the criminal roots. Some of you will know today's sexual risk orders, for example, the police can then go down the route of but those are only available to be applied for by the police and by the Serious Crime Agency, National Crime Agency. And this is where you'll find at that same as far as these orders are concerned, the CSC orders then having jurisdictions local authorities typically will be applying for those that's one very important and significant use of the inherent jurisdiction and you can see this case of re t also illustrates how this has been used in other matters. Also, let's look at some of the other ways in which one can look at protection and for personal protection. And this is where the protection from harassment act of 1997 comes into play. And this thing has brought in various criminal offenses. So there's various forms of criminal offenses. And this will be particularly relevant where the parties are not associated with each other. So this would be relevant where, say you're approached by somebody who is being maybe harassed, um stalked maybe or threatened maybe by say neighbor or maybe by work colleagues. So it could be with the disputes between say work colleagues in this situation. It could be relevant there between employer employee, for example, between like say, neighbors between people who are not like so associated with each other. And this is where even though it's possible to bring criminal proceedings, uh and therefore obviously that's dependent on the police and decided to bring those proceedings, even though it's permissible to go down that route, which I'll talk about shortly. It's also possible to actually bring applications by way of a civil action as well. So that's possible. So you can actually bring a civil action under what's called a sort of harassment Whereby under Part eight of the civil procedures in 1998, it's possible to bring a civil claim for harassment against uh the defendant in these circumstances and then deceit damages and an injunction as well in in appropriate cases. So that's also possible in these types of matters. But more times than not, you'll find that it may well be the police who are then prosecuting instead. And this is where there's various offenses, there's the offense of prohibition of harassment, where a person may not pursue a course of conduct, which amounts to harassment of another in which they know or ought to have known the matter, harassment of the other. And harassment is where you're causing someone to feel alarmed or distressed and there's gonna be a course of conduct. So it's got to be a course of conduct and therefore, that activity of more than one occasion. And then there's various other offenses. So this, for example, the offense under section four of putting people in fear of violence, and this is where it causes another person to fear on at least two occasions that violence will be used against him or her. And this is where the alleged offender offender must have known or ought to have known that their conduct or course of conduct will cause the other to fear on these occasions. Now, let's say somebody is prosecuted for any of these offenses under the protection from harassment Act, whether it's for harassing whether it's for fear of vans, whether it's for the other offenses, such as the offense of stalking the court can also then go on and make a restraining order restrain the defendant and from further conduct, which amounts to harassment, or which will cause a fear of violence for the purposes that are protecting them from the person named so they can even attach these restraining orders to these if needs be. And in fact going further than that, the Domestic violence crime and victims Act some years ago took this even further by bringing in a Section five A which provided that even if somebody's prosecuted under the Protection from harassment act, say, for the offense of harassment, the offensive fear of violence, even if they are prosecuted, but later they were acquitted. Then if even in those circumstances, if the court feels it's necessary to do so to protect the complainant in those circumstances, they can still attach a restraining order prohibiting the defendant from doing anything describing the order. And this particular provisions came into effect in September 2009. So you can see the effect is if somebody's been prosecuted, for say harassment for stalking for fear of violence, or any of the other offenses under the act, even if they're acquitted, restraining orders can still be attached if needs be So, like I say, there are other offenses. So, the offense of stalking in itself. This came in as a result of the freedom protection of Freedoms Act of 2012, and this particular offense that came in under section two a is one whereby this requires in order to secure a conviction. This requires a course of conduct which is in breach of Section 11 of the Protection of harassment Act, which is a course of conduct which amounts to harassment. And this course of conduct must amount to stalking. Okay, so again, you've got to show that course of conduct in that regard. And you look at section two a sub paragraph three of the act, it gives you different examples of stalking in that regard. This is a summary offense, penalties imprisonment for a term like seen in six months or a fine in appropriate cases. And then there's another offense as well, which is the offense under section four a. And this is where by this is the offense stalking involving fear of violence or serious alarm or distress. And this particular offense would be relevant whereby there's again, a course of conduct which amounts to stalking which amounts which causes another to fear on at least two occasions that violence will be used against him or her causes another series or alarm or distress, which is substantial effect on his or her usual activities. So this is particularly relevant. I would suggest for somebody offenses that may be a rise as a result of some of the social media activities. So somebody meets somebody on say facebook for example, and the other person is not leaving them alone to begin to stalk down the other person is now fearing violence or serious alarm or distress in that regard. This is where this offense may then be committed and action may be taken, Like I said, there does need to be this course of conduct before the court can actually then go on and make these orders. So, it's very important to bear that in mind before the court makes convicts for any of these offenses. Before they go on and make the restraining order, there's got to be a course of conduct. And this is what a case of our against a artist 2013 decision emphasizes this. So something to obviously bear in mind insofar as that's concerned. Then, for the last part of today's course, then what I wanted to discuss with you is obviously the issue surrounding domestic abuse and when it relates to contact matters, and as you can imagine, this is a very huge area in itself. And this is where we've got these four cases of riel reveal, and we h all those years ago, back in the year 2001 of the key aspects that came out of these cases were that the court didn't make it incredibly clear in these cases that even if they are findings made of domestic abuse, they in themselves, of course, do not prevent the court uh in those circumstances from uh Still going on and deciding on the issue of contact, and they don't raise a presumption against contact. Of course. So even if their findings made of domestic abuse perpetrated by let's say, the father to the mother, for example, that doesn't in itself raise a presumption against contact. And of course, as many of you will know, we've got practice traction 12J. In particular which has been amended over the years and as recently amended again as a result of the domestic abuse after 2021. So this is where the court will then go on and consider what form of risk assessments may be needed. It might be that there is a psychological psychosomatic assessments, other forms of assessments that may be needed to look at what type of contact they should be, whether it's supervised, whether it's supported whether it's direct whether it's indirect and so forth, and therefore to look at the child arrangements there. And this is where it's important effort to bear in mind that findings of abuse will not in themselves will obviously lead to a presumption against contact. And this is where when you are dealing with injunctions, this is where it's important to bear in mind that these then tie in with obviously containing within the family procedure rules. So, you've got part 10 of the family procedures which then covers these orders that have been discussing with you in terms of non molestation orders and occupation orders that covers the procedure, everything from taking instructions, drafted the paperwork, lodging the application pursuing the order right through to its eventual conclusion. And then you've also got part 11 which is a separate part altogether which covers applications in the powerful way family in relation to forced marriage legislation. So there's forced marriage protection orders and in so far as those orders are concerned, those are ones that local authorities will often apply for although it is possible for obviously the victim and indeed anybody else on their behalf with leave often applying as well. So It may well be the case that the local authority involved say they may have a child, say who say 16 years of age, who is subject to say an interim care order or care order. And that child uh maybe 16, maybe 17 maybe in the process of being forced or has been forced to enter into a marriage by, say their family members. And that's where the local authority may then seek to invoke part 11 and therefore apply for an order under Section Part four A of the Family Law Act for forced marriage protection order. Either to prevent the manager from going ahead or has already gone ahead to then have other ancillary orders that are made such as the person to be uh collected. For example, if they've been taken from the jurisdiction otherwise for them to be traced for them to be collected for them to be returned to the jurisdiction, passports be handed in. Travel documents to be handed in. And also orders prohibiting violence threatening behavior, harassing pestering. So it's a very wide order of forced marriage protection order which may be applied for in those circumstances and staying with that. Sometimes local authorities will also go for other forms of personal protection orders in the public arena. So for example, if an example I've been using the child is, let's say it's a younger child perhaps who is subject to an interim care order and there is domestic abuse in the household. But the local authorities are satisfied that the non abusive parent is capable and able to look after a child under on as long as the other parent is required to vacate the property. And that's where the local authority can go for an order under section of 38 A of the Children act in 1989 where they are seeking an order for an interim care order, but for an exclusion requirement to be attached whereby the one party, the parent is required to vacate the property and then the other remains in the household with her child. And as long as the local authority have to satisfy the court, that the non abusive parent will be able to look after a child in those circumstances, exclusion of the other and consents to the other parent being excluded. And that's where an exclusion order under section 38 A. Can be made. So in a way it says a similar purpose to what the occupation orders are that we've been discussing in this course. Okay, So those are some of the orders that you can also get attached and made that in relation to public child care cases. And like I said, this ties in with the forced marriage protection orders that have been discussing with you. Right? So there we are. So this brings this session to it and in fact it brings the the three sessions together. Session one and session 2.1 to point to discuss with you. Today brings order together. Uh you can see I've spent a fair bit of time and going particularly through normal station and occupation orders with you. The procedure how they work the forms, the changes, the changes brought about by the domestic abuse act and the impact on for example, destruction 12 J. We've spent some time looking at also other forms of personal protection case of CSC case of public child care cases involving the protection from harassment act in that regard. So I hope it's been a useful session for you and I thank you very much indeed for listening. And I look forward to speaking to you next time. Thank you very much. Bye for now.
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