Hello, welcome everybody. Very pleased to welcome you to today's session through Data law. I'm Safta Mahmoud. This then is the continuation of the course where I'm taking you through personal protection Orders and Domestic Abuse Act of 2021. Some of the key aspects and this is session three. So as I've mentioned before, there's four sessions in total. In this course, each one, approximately 30 minutes in length. So today that I'm continuing with this, I'm looking at session three. So as you know them with the learning objectives for this course, I'm taking you through the various remedies which are available for personal protection orders in both private uh Children and public Children law and family law cases generally and found practitioners and Children law practitioners advising on domestic abuse need to therefore be aware of these subject areas. So in the last couple of sessions and I've been spending some time going through with you, the position of nominal station orders, occupation orders, the criteria we've looked at associated persons, the definitions under the Domestic Abuse Act 2021. In the last session, in particular, I spent a fair bit of time going through with you the uh the criteria for seeking these orders. Uh and also the procedure. So we went through without notice orders and also return dates and what happens at those stages. I looked at the F L 41 and also the statement in support what I'm going to be doing today then is I'd like to go through normalization orders and occupation orders in more detail, particularly in terms of the President's practice guidance on this or then have a look at some recent case law in so far as these are concerned. And then towards a late late latter start. Part of the course, I want to spend some time looking at that enforcement, particularly criminal and civil penalties. And then we'll also look at the protection from Harassment Act as an alternative route to seeking and obtaining uh personal protection for clients in those circumstances. So let's then first and foremost, look at the position surrounding duration of nola station and occupation orders. And this is where we've got this case decided and handed down by Mr Justice Moin back in 2014, this is the case of J M and C Z of 2014. And this was a case whereby one of the things that his lordship emphasized at paragraph eight was that it's necessary to have a full inter part and therefore on notice hearing very soon after the without notice, hearing. And at that time in 2014, some of you will recall studying many parts of crossing England into Wales. It was quite routine for courts to make without notice orders. But rather than listing the matter for a return date, have to say a week or two. Instead, the court was granting the respondent liberty to apply for a hearing. So making the order again, it served upon the respondent. And if the respondent did wish to challenge that order, that order that was made rather than listing the matter for hearing instead, like I say, expecting the respondent then to contact a court and invited them to contact a court under a li liberty to apply provision and then getting it listed for hearing. And his lordship said that that simply was not good enough that did not comply with the provision under section 45 subsection three of the Family Law Act of 1996. In so far as enabling the respondent to con consider to have the court consider the application at the first available opportunity. It wasn't complying with that at all. And with that in mind, the then president of the family division, Sir James Mumby issued this very significant guidance in 2014 in October 2014, which was later than updated in January 2017 known as the Practice guidance Family Court duration of par or without notice orders. And like I say, this guidance which was updated on the 18th of January superseded the previous guidance as of October 2014. So just running through some of the key aspects of this, you can see that one of the things that his lordship emphasized was that when he did get these ex parte or without notice and Junie orders that were made, his lordship said that these must never be made without limit of time. There has to be a fixed end date for these. So it's not sufficient to simply specify a return date. The order must specify on its face and in clear terms exactly when it expires on a date and a time when it expires. Secondly, it must provide a return date. So it must specify the day to time and place of a hearing on a return day. And also normally the return date should be no more than 14 days after the order was made. So very, very significant that so therefore having a return date, say four weeks, six weeks later after that notice order was made was simply not complying with the expectations on the section 45 subsection three of the Family Law Act of 1996. As to how long the matter is actually listed on a return date was a matter of discretion for the judge. Uh And as I'm sure many of you will appreciate that the return date. It's not often listed for very long, maybe 10, 15, 20 minutes sometimes. But as long as there is a return date, that's an important thing. So a short listing may well be appropriate in cases. But as long as there is a listing by where the return date. And the other thing is his lordship was saying that careful consideration needs to be given in so far as the positions for the duration of the orders made without notice. So it might be that if I went to court today and I invited a judge to make a without notice normalization order, I may get it made just for say seven, maybe 14 days and then I'll have a return date. So in many cases that may be appropriate, having said that sometimes particularly where you've got cases involving long term abuse or there's some other good reason. It may be that the order made at the without notice stage is made for much longer, maybe six months, even 12 months. But you must still have a return date specifies. So that's the key thing and that speci that return date must be normal more than 14 days after without notice order was made. So you could be in a situation where an order is made today without notice for say six months, but there is a return date listed in say two weeks time to give the respondent the opportunity to turn up, to take legal advice and to put forward his or her views as to whether that order should remain in place or whether it should be varied or otherwise. OK? It's a very, very important to, to bear that in mind. The order should also make it clear that it was made in the absence of a respondent. OK, because obviously you're going without notice. So it was made in the absence of the respondent and the court considered only the evidence of the applicant and also that the court made no finding of the fact. Because of course, how can I make findings if the respondent has not had the opportunity to put forward his or her side of story? So it's very important to emphasize that point as well. And where the evidence is written, it must be identified in the order. And exceptionally, if the court has received or or other evidence. So for example, if you're in court and let's say you're put into the court, maybe a photograph that your client has provided of, of maybe uh injuries or abuse otherwise or say there's, there's a text message that they received from a responder and they wish to use that as evidence. Then if exceptionally, the court does take into account evidence over and above what was in your client's statement, then that should be recorded on the face of the order or reduced to writing. And so do the order because as you can imagine if I was in court acting for the applicant, and as we're waiting to go in and see the judge, my client receives a text message from the other party threatening them, then I may wish to use that as evidence, but then I need to make sure the face of the order uh evident refer to that was reduced in writing so that the respondent knows that when he or she served, they know that we also relied upon that text message in support of, of, of our application anomalistic under occupation order. So obviously, that then respects the article six rights. OK. And where the order was made under part four, it must be cited. The order that the court did have regard to section 45 1 and 45 2 of the act I E deposition surrounding without no orders. The order must also contain a statement uh emphasizing the fact that the person does have the right to apply to set side of the order. The words lied to apply is simply not enough. It must set out that the app respondent is entitled without waiting for the return day to apply to vary or set aside the order. So that's got to be clear. And if they do so, if they do contact a court and want to apply to vary or set aside, the court must as a matter of urgency list it for a hearing within a matter of days at most. OK. So that provision is there. Now, the other thing that the president did emphasize is his lordship did say that evidence experience does suggest that in some cases, particularly if one is seeking a novelization order. The respondent may not turn up at the um return date, which is of course possible. So may not turn up, they may not attend uh on the return date. And that's possible either to apply to the order or to vary it. And where in such case, there is no attendance body respondent in those circumstances. So where there is no uh attendance body respondent in such cases, If uh the order has been served, if it doesn't require any amendment to it, then there's normally two weeks of it. So for example, if I was in court today and we got a six month without notice, no order granted. And then we've got a return date, say in two weeks time, if in two weeks time when we attend that, that return date, I can satisfy the court that the responder has been personally served. And if was aware of the order that was made, but the responder has decided not to turn up at court, then if we simply want that order to remain in place, I would rely upon this guidance to invite the judge that there is no need to reserve because the order just is remaining as it is I it was made for six months. We've only had two weeks worth of the order relied upon so far. So 5.5 months of the order remains and therefore it should remain. But the order made on return date should record that the respondent have although afforded the opportunity to be heard, has neither attended nor sought to be heard. OK. So that's where that provision comes into play. Now, as I mentioned, Mr Justice Moin did emphasize therefore, in that 2004 case, that the uh giving the respondent the opportunity to apply libera to apply simply was not complying with the President's guidance. And this was emphasized once again, in the case of V W minus this 2016 decision, this was handed down on the 10th of August 2016. So once again, Mr Justice Moin emphasized that there was the absolute necessity to ensure compliance with the President's guidance on injunctions and without notice normalization order, which was granted was one way again, it did not provide for a return date. Instead, the expectation was upon the respondent to apply for a return date, uh sorry to, to, to have liberty to apply rather than actually listing it for a return date. The order had been made for a year and it had provided that it would be considered a further hearing on a date to be fixed by the court or upon request by the respondent, which again did not comply with the President's guidance. And in fact, with section 45 3 of the funding of 1996. So once again, his lordship was very concerned about the terms of the order and the way in which it was granted. And the other thing that his lordship can emphasize is that without notice, orders are of course, very much the exception, not the rule. So therefore, you should only be granted these where the facts do, in fact, uh support them. Now, this has been reemphasized recently, in fact, just a couple of months ago, in this case of DS against AC by Mr Justice Leven sitting in the family court on the 29th of March 2023. And the court emphasized the fact that uh the power to grant an order on a without notice basis is set out of course, within section 45 of the family to work in 1996 which we know and therefore, it sets out the uh the power of the court to make the order on that basis, which we all know. But it's important to note that the specifics within section 45 or paragraph two of these. And you'll remember that in the previous session, I went through these with you. So this sets out the circumstance in which the order may be sought and granted without notice. I e if there is a risk of significant harm to the applicant or a child, if the order were not made immediately, if your client is likely to be deterred or prevented from pursuing if it's not made immediately, or the respondent is deliberately availing service and the order is needed to prevent serious prejudice to your client or the child. So you've got to use one or more of these three factors to justify the need for the order to be made without notice. And as you know, the step to support has to emphasize why you're seeking the order without notice. The other thing her ladyship did emphasize at paragraph 23 was not only on a without notice application, the risk of significant harm, which we've just discussed, but also uh whether you could use any of the limbs or section 45 1 or two as we just said. But also as Mr Justice must then emphasized in that V W case uh without notice or should only be made in exceptional circumstancess without proper consideration of the rights of the absent party. And the court should exercise its powers under the Family Law Act with caution particular to one side of hearing on a paper, consideration without the other party having noticed because as you know, sometimes the courts will actually hear these applications on paper. They may not even see or hear from the applicant or the applicant's lawyers. And again, the court needs to act with caution in those circumstances when they've been asked to make these orders, when they've only heard one side of the story. So again, very, very important to bear that in mind. And her ladyship wanted to really use this case to emphasize how important it is to ensure that these principles are appropriately complied with. And that orders are not simply made by default and that that notice order should only be made in exceptional circumstances where there is that risk of significant harm. And if it is made then, and I mentioned earlier, as I mentioned earlier, the attempt to support must, must expressly deal with the case that the matter is exceptional where the significant risk is alleged. And the ladyship as you can see here did emphasize in the judgment that far too many applications are being made where there is no reasonable basis to grant the application without notice. And that's why this case really had had to be handed down to emphasize that point, right? What I now want to do then is I want to spend some time running through with you uh the position surrounding enforcement of orders. So we're gonna be looking at how we deal with enforcement on the firstly part four, the formula work uh in, in so far as the orders under part four and 1996 orders are concerned. So this is where let's look at the criminal sanctions first. So let's start with looking and discussing the position with normalization orders. So if I was in court and we were granted on behalf of my client a with, with a nom order, whether that was granted without notice or on the return date, and this is where it's important to bear in mind. The provision under section 42 A of the Family Law Act of 1996. So if we got a nom station order without notice or on notice, then we have the provision available under section 42 A which is we get an automatic power of arrest attached to that occupation that uh nominal station order. I don't need to be applying for a power of arrest. We get it automatically and that's because of section 42 A. So that provides for the fact that where if a person who without reasonable cause does anything where they are prohibited from doing so by a no order, they will then be guilty of an offense. So if somebody does anything that they are prevented, prevented from doing, then that makes it a criminal offense. Ok? And a person can be guilty of an offense only in respect of conduct when they were aware of the existence of the order. So once we've got them served for example, and therefore they should be aware of it. Then if they do anything which they are prohibited from doing so under the uh nominal station order, then that makes it an offense. Ok? And where, where the person who is convicted of an offense uh in that circumstances, uh in respect of any conduct, then that person can be convicted. Uh and as, as a contempt in that regard and therefore they could be taken through the criminal court and therefore the C P S can prosecute an indictment. A maximum penalty if they are convicted is five years in prison or fine. And a summary conviction of maximum penalty is 12 months imprisonment and or fine. And the Domestic Violence Crime and Victims Act of 2004, section 10 made a common assault and the rest offense and therefore power arrest for an no station orders and therefore it removed that and retains them for occupation orders. So the effect of this which came in on the first of July 2007 is breach of anomalistic order. It is a criminal offense. Uh a an arrest, a criminal assault is arrestable offense. And therefore the police constable can arrest without need for a warrant in the event of somebody who is allegedly breaching a no order. And if the and if the person is prosecuted on some conviction, maximum penalty is 12 months in prison on indictment of maximum penalty is five years. So as from the first of July 2007, what you found is breach of anomalistic order because it's become a criminal offense more times than not, the C P S will then prosecute for need to be as opposed to you as the lawyer for the applicant needs to go down, the criminal needs to go down the family route to seek a committal in that regard. So instead the C P S will be looking to prosecute in most cases, ok. But remember this only applies in relation to non station orders, not in relation to occupation orders. So where do we stand with occupation orders? Well, in those, you do need to specify in the application and in the statement in support as to whether you are seeking a power of arrest. And if you are, then you do need to be evidencing what evidence you're relying upon to seek for that power R S to be attached. because breach of a occupation order does not carry with it an automatic uh uh criminal offense in that regard, unlike a uh breach of a anomalistic order. So to get a uh power of arrest attached to an occupation order, you need to be complying with section 30 47 of the Family Law Act of 1996. So you need to be complying with section 47 and section 47 provides that if the court does make first and foremost, the uh occupation order, so obviously, that's got to be made in the first instance, they, they do make that order. Then secondly, the court can, if it appears to the court that a respondent has used or threaten violence against the applicant or relevant child, the court will then endorse circumstance, attach a power of rest unless it's satisfied that in all circumstance or the case, the applicant will be otherwise adequately protected without one. OK. So if say I was seeking the order, an occupation order uh on a on notice basis on a return date, let's say if I can satisfy the court more likely than not, there is evidence to suggest that the respondent has used the threat of violence towards my client to under the relevant child. Then in those circumstances, I will be invited to a court to attach a power of arrest to the occupation order. Unless the judge is satisfied then the circumstances my client and or the child will be otherwise adequately protected without this. So therefore, we will be, we will be asking for this unless like I say, the evidence suggests that it will not be required in the circumstances. And the importance of the power of arrest is that it gives the police then uh authorization to arrest without the need for a warrant. So you can see, put it in the same category as anomalistic order in terms of being able to arrest for alleged breach of that. So if the police are satisfied that they are reasonable grants to suspect that the person has breached the um the terms of the uh occupation order in those circumstances, then they can arrest that person without any need for war in those circumstances. They can either take criminal proceedings if they want. So that's a possibility. So therefore, they can take the matter through the criminal route if they so wish. Uh And uh if so, and of course, the matter could be proceeded with criminal proceedings or it might be that they arrest a person and the person is then brought back before the family court. And if that's the case, then, then it then opens the doorway for you as the lawyer for the applicant, then to think about pursuing committal proceedings. So that's where the C P S can do that and the police rather can do that. So when the person is arrested, a respondent must then be brought back before the family court within 48 hours of their arrest. And uh and this is where the court can, the family Court can then deal with any committal application if that's going to be pursued. And if that is the case, if the person is brought back before the family court for alleged breach of the uh occupation order, then there's various powers available to the court in dealing with a committal. So they could, depending on the severity of the uh the breach, they can make an immediate prison sentence if needs be. So they can impose an immediate custodial sentence if needs be, they could make a suspended order. So they can say we're gonna make an order, but it's going to be suspended on certain terms. For example, if that's possible. I e the court may say we're not going to be imposing a uh a penalty today for the person to be uh sent to prison for contempt of court. But if they were to come before us again, say in the next say six months or so on the next occasion, if they are found to have breached the order again, the next time we will all send them to prison, the person could be fined. So of course, the court, the family court can find a person. The family court may make a fresh injunction. So it might be that they are brought before the family court for breach of an undertaking. And this is where the court may make an injunction, the court may make findings and the court may attach uh a power of arrest to an occupation part of the order if it wasn't previously. So you can see there's various options available to the court when dealing with committal applications. And this case of Hale and Tanner a few years ago in the year 2000 was a case which said that when and if there are proceedings brought before the court for contempt of court, and the court does need to consider a number of factors in deciding whether or not to impose a sentence of imprisonment for deep breach. So they need to consider a number of factors such as the length of term uh in those circumstances, whether or not it should be suspended and like say immediate sentence, sentence by a um custodial sentence should not be seen as the first port of call in these circumstances. It's obviously important to bear that in mind. Now, if you are going to be pursuing a commit or so, if you are in a situation and whereby uh you are going to be faced with a situation where there was an occupation order made, the other person has allegedly breached the uh the terms of the order in these circumstances. And the police have arrested the person and brought them back before the family court to enable you to go down the route of thinking about committal during those circumstances. This is where you don't need to think about the procedure for that in terms of any committal applications. So this is where I would suggest you look at the family procedure amendment number two rules of 2020 which led to the revised part 37 of the family procedures which relates to committal applications. Now, this isn't limited to just committed applications or breaches of orders under the Family Law Act or breaches of undertakings parts. It certainly relate relates to any breaches of orders within family proceedings and breaches of undertakings within family proceedings. So this isn't limited to just injunction cases. This could be in finance cases where somebody has failed complied orders for disclosure. This could relate to Children cases, private and public where people have failed to comply with orders in relation to ensuring that Children are being made available to spend time with the other parent for example, and they're breaching the order. So it's used in that context as well. And the revised part 37 was updated on the first of October 2020. If you are going for committal, the form that you need to be completing to seek the committal order at the committal rather is uh the form F C 600. That form was updated and provided as from the 30th of July 2021. So that's the form that you should be using to seek an order for committal. Now, it's very important to make sure the application notice sets out in full the grounds on which the committal application is being made. So you need to be setting out numerically and separately each alleged act of contempt. So you should be putting in the application notice what the terms of the order are and then setting out numerical and separately each of the alleged acts of contempt I E when did they breach the order? When, what date, what is the alleged breach? What did they do? And then that needs to be supported by one or more affidavits containing the evidence relied upon in terms of any application for committal. You must make sure that the respondent is personally served with the application or alternative methods of service. If the court was granted you permission to serve through any other means, and you also need to make sure that you obviously serve them with not just the application of form S E 600 but also sort of statement to affidavit in support and also any, any, any other evidence in support that needs to be personally served upon them or other methods of service. If the court has given you permission to serve through any other means at the committal hearing itself, very important to make sure that you do need to satisfy the court beyond reasonable doubt. Ok. So it's a criminal standard that will be applied in that regard. The respond is entitled to uh legal advice on a and they are entitled to a criminal legal aid on that basis, they are entitled to have a reasonable opportunity to prepare their case. And if they were to say, make concessions, the court can purge the contempt and obviously exercise their discretion there. So again, very important to do with committal. And if one is seeking committal, the maximum penalty for committal under the contempt of Court Act of 1991 and therefore commit all in the family court is uh two years in prison maximum and any fine. Ok. So that's the maximum penalty in so far as that's concerned. Now, when you are dealing with return dates, as I mentioned earlier, sometimes a respondent may turn up and he or she may be offering an undertaking to the court and undertakings are a very useful and necessary way of dealing with matters of this nature and an undertaking pursuant to section 46 of the Family Law Act is a formal promise to do or not to do something as the case may be. And these are very significant orders I would suggest. Uh So uh promises rather, I would suggest in these cases, there are obvious advances in an undertaking because by offering an undertaking, what a person is essentially providing for is that uh no findings can be made. Uh As a result of the court accepting the undertaking, there's no admission made, there's no findings made, but the person is giving a promise. So there's no order made as such. You can't attach a power of arrest to an undertaking. So there's that. But what is important is the person who is making a promise to the court to say, look, I will or will not do these things as the case may be enforcement of an undertaking is in the same way as enforcement of breach of an alleged order. So you can go for committal as I've just discussed and, and like I say, you cannot attach a power of arrest to an undertaking. The court would not necessarily be in a position however, to accept the undertaking. So uh the court can exercise their discretion as to whether or not they will be accepting the undertaking, but it should not normally be accepted where the court would otherwise have attached the power of arrest unless the court believes the applicant will be adequately protected with that one. So for example, if you look at section 46 3 A of the family law, Act of 1996 the court should not be accepting an undertaking and instead should be going on making the normalization order. For example, where uh the court is satisfied that there's been violence or threats of violence, uh which appears the court that there's been violence or threats of violence and that the applicant and any relevant child would not be otherwise adequately protected of them by making the order. So there are restrictions and circumstances where a court may not, in fact even accept the undertaking in that regard. Right? For the last part of today's session, what I want to do then is look at some of the other ways in which we can then look at providing uh personal protection, remedies. And so far, and I've been discussing with you the position with the Family Law Act of 1996 and part four in terms of no orders and occupation orders. But of course, there's also the protection from Harassment Act of 1997. And uh this will be particularly relevant where you've got situations where persons concerned are not associated with each other. So you remember in the first session, I spoke to you about associated persons. Section 62 63 you got the long definition of persons there, spouses, former spouses, civil partners, former civil partners, persons who are cohabiting or have are cohabiting or were those in an intimate person relationship of significant duration, parties to the same family proceedings. But what if they're not associated with each other? What if you got problems, say with your neighbors, for example, who are assaulting you or threatening you? What if you got problems with work colleagues, for example, say between an employee, an employee, for example, what if somebody's stalking your client? For example, somebody they're not know in that situation. So this is where you got to think about other ways of getting personal protection orders. And this is where we could then employ the use of the Protection from Harassment Act of 1997. Now, this could be used as a civil remedy. So 11 can then apply for civil order under the Protection from Harassment Act by way of a claim form in particular as a claim under often Apartheid procedure. So you can bring a civil action, civil action for damages and injunction in so far as this is concerned. But also it's possible and more commonly, it's possible for the C P S to prosecute under the protection from harassment of nine of 1997 which is more common and this is where there's various offenses under the Protection from Harassment Act, which the C P S may therefore decide to prosecute under. So there's section two of the Act, for example, which relates to the offense of harassment, which is any course of conduct which amounts to harassment or another which they knew or to know would harass the other person harassment includes alarming somebody or causing them distress. So this is an offense that the person may be prosecuted under. And then one could also apply for a restraining order within these proceedings. When that, uh, prosecution is being brought, there is another offense as well under section four, which is basically putting people in fear of violence. Uh, so this could be where, uh, one causes another than to fear. Uh, on at least two occasions, there's got to be that course of conduct, that violence will be used against him or her. And the alleged offender must therefore have known or, or to have known that their course of conduct will cause the other than to fear on each of these occasions. Like I said, if somebody is being prosecuted under one or more of the offenses under protection from Harassment Act, and the court can also make, uh, a restraining order which then restrains the defendant from subjecting the other person for that from that form of conduct in those circumstances. So these are the two, uh, original hacks which were offenses rather, which were brought under this legislation. And as I mentioned, there is the opportunity for the court to also attach the restraining order. Now, there were some changes that came in a few years ago and this is as a result of the Domestic Violence Crime and Victims Act of 2004. So that if somebody is acquitted of any offense under the protection from Harassment Act. If so, if they are prosecuted but acquitted under say the act, uh, in terms of harassment or fear of violence, for example, or any of the other offenses that in those circumstances, it's still permissible for the court to nonetheless, in those circumstances, attach a restraining order in those circumstances. So they can still attach a restraining order if needs be, uh in those circumstances. And this could then be used to protect the other person from harassment by the defendant by making an order prohibiting them from doing anything which is set out in the order. And this particular provision only came into effect on the 30th of September uh 2009. So you can see it's still quite a relatively recent uh provision that came into effect a few years ago. And finally, then I wanted to mention for today's purposes, uh a couple of other offenses that came in uh a few years ago as a result of the freedom of information of, of protection from Freedoms Act. And this is section two, a offense of stalking, ok. And this ties in very much with the offense of harassment. So it can amount to harassment, but also it can amount to stalking in itself as well because it can take the form of stalking behavior. Uh And uh as you can imagine, this could be other forms of behavior where somebody's controlling somebody following somebody, for example, in those kind of circumstances. So this is an offense that came in under section two A, a few years ago. Uh And uh it's a summary offense, penalties, imprisonment for a term like exceeding six months or a fine. So a person could be prosecuted under this and again, restraining orders could be attached if needs be. Uh and uh there's also the another offense under section four A for example, which is the offense of stalking with uh with the intention to cause fear or distress or alarm or distress. So there's a number of other offenses that persons could be convicted of also if uh if that became necessary. Ok. So that brings this session to an end. So you can see you've also discussed with you the position with alternative methods of seeking protection in that regard as well as looking at enforcement. So in the final session, I'll put together some of the other aspects and the Domestic Abuse Act of 2021 also some forthcoming changes. So, thank you very much for listening and I'll speak to you very soon.
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