An vital family law session regarding Personal Protection Orders. This has been a growth area of work for family lawyers during the COVID-19 pandemic.
Mhm Hello and welcome everybody. I'm very pleased to welcome you to today's session through Data Law. My name's after Mahmoud and I'm very pleased to welcome you to today's session. This is Personal Protection Order's current law and relevant procedure. So this is session one of 4 sessions where we're taking you through this area to bring you up to speed with where we currently are now with these sessions, then there's going to be a number of slides that are working through with you to really assist you with facilitating the learning. And it's a split up over four parts each approximately 30 minutes in length and therefore around two hours in total. And the aim then is to cover a number of matters of the course Of like Saddles two hours. So we'll be looking at these matters in particular. So looking at first and foremost the different types of remedies that are available when you're dealing with Personal protection order's depending on the nature of the applicant, for example whether they are spouse of a partner relative or otherwise. And a large part of this course will be looking at the Family Law Act of 1990 six. I'll be taking you through that and a lot of the relief available there. But also we'll be looking at the protection from harassment and from 1997 or so as well as some of the other associated acts of Parliament. So there'll be consideration of Normal station orders and the Family law act and also occupation orders under that act or so. I'll also be taking you through other orders, whether it's was talking protection orders force, major protection orders and also when we apply for orders for personal protection uh in relation to public Children law cases will ever look at also. And uh I'm going to spend some time looking at the various remedies that are available and linked with that. That is the enforcement steps whether it's uh powers of arrest that applied for acting upon That and the changes to that, particularly section 37 of part fits seven rather of the family procedure rules, which was updated back in october 20 twenties on the first october And then some of the changes throughout 2021. In so far as that's concerned, I will be spending some time going through not just the law but also the processes of criteria, the paperwork as well as some of the leading case law and statute provisions as well to get you up to speed with that. And this course is particularly relevant for both for both those of you practicing and uh representing families and also Children. So you got both elements there. Okay, uh the lawyers as of September 20 21 and I've put the copyright acknowledgement here acknowledging crown copyright and also the DFE as corporate author. So for this session and what I want to do is really talk to you first and foremost about some of the terminology. I wanted to talk a little bit about the Family Law Act, what it is, what type of orders are available. And one of the things with terminology is this, you'll be able to prepare better, more meaningful documents as I mentioned, if you are clear about what the meanings are of certain orders as well as the terms and how they apply in principle. So it's very, very important and that you are familiar with, for example, which Act applies in the first instance or is it the family law act of 1990 6? Is it the stalking protection act? Is it the protection from harassment act? Is that the Domestic abuse Act of 2021? So which applies? And in which context you need to understand what we mean by Associated Persons and you need to think like so about the different types of Orders available. So starting with that have mentioned first and foremost, then, the family law from 1996, part four. Now, this particular act, majority, which came into effect in October 1997, consolidated a lot of previous legislation That we have, so no, as a solicitor practicing in this field from the early 90s, we used to have a number of acts that Amanda used to apply and the prior to this one for Personal Protection Order's. We used to use the domestic violence and matrimonial proceedings act in 1976. The Matrimonial homes at 1983. The domestic proceedings and Magistrates courts at 1978. And if you got it wrong, in terms of you used the wrong act to seek the relief and effectively had to start again. But what this acted for us is it was all encompassing. It basically codified a lot of Previous legislation into one. And as you can imagine, this act has been in place now Since October 1997. So it's been what some 20, 24 years almost. So it's been quite a while, you can see and it works brilliantly, even though it's been updated a lot over the years, the actual thrust of it is actually excellent. So first and foremost, what do we mean by associated persons? And this is defined for you in the Act on the Section 62 and 63 of the Act. So what this does is this sets out a list of people who are defined as being associated. And it's only those lists of people who are then entitled to seek relief against the respondent, the other party. So if you're not associated with the respondent, you know, the person against whom you're bringing the action, then you simply cannot utilize this act for the purpose of that. And that's where you need, they need to be looking at other acts of Parliament, such as the protection from harassment act, for example. So, some of the main Categories of people who are associated pursuant to section 62 and 63 of the Act of 1st of all, somebody who is married to the other all was married or civil partner, was a civil partner to the other person. Now, as you know, marriage has been permitted for same sex couples as well since the married same sex couples act of 2013 came into effect back in March 2014. And also when it comes to civil partners, We've had Civil Partnership Act of 2000 and four, which permitted Civil partnerships for same sex couples. When that came in on five December 2 1005. But recently on two December 2019, the civil partnership regulations came in which have been permitted the civil partnership Um and Registration Act of 2019 to be implemented So that it is permissible for opposite sex couples to also now N20 civil partnership. So that's the first category of persons, people who are married or were married also for partners or worse they were partners. And then you've got a long definition of what we mean by somebody other category. So for example, you got cohabit ease the cohabit. E is somebody who is living together as though they are married or in a civil partnership to be cohabiting. You've got to be living together most days of the week. It's got to be some level of intimacy and there's got to be some sharing of their financial pool and that then brings them within the category of being co habitants or former co habitants. And as I mentioned, relatives can apply under this regime as well. So therefore you've got the position with relatives being able to apply it. There's a long definition of relatives for the purposes of section 63 of the act. So you can see amongst other people, relatives will incorporate, for example, the father, the mother, son, daughter, stepson, stepdaughter, brother sung uncle. And if they call habitants, any person who would have been included had to be married. So you can see it's a very long definition of co habitants and as you can imagine, it is necessary to ensure that that protection is available for them. Also in that regard, then you got the other category of person who is somebody who is or has lived in the same household of them by being of their talent lodge or otherwise, which is somewhat we've done that now now that initially when that first came and it was designed to principally assist persons who were in a same sex relationship. But of course, now we've got the civil partnership act, we've got married, same sex couples act, which provides for that in any event. And also somebody who has agreed to May one another, whether that marriage has been terminated or not. Another category which came in back in July 2007, which which has been in place now for some years of course is somebody who is or has been in an intimate personal relationship with the other for a significant duration. Now, intimate personal relationship isn't defined significant duration isn't defined in terms of what the period of that relationship is. But what you will find in practice is that with those situations, judges will look to see what what what is the position I have been together for a reasonable enough period of time to exercise and assume jurisdiction on that basis in practice have found that's particularly relevant when you got to say boyfriend, girlfriend, you're going out together, they're not living together. They may be live on different parts around the country and then there is that intimacy they've been together for a while and that's where there may be a need for protection there. And then he got f which is somebody who is in relation to a child, a parent of a child or who has parental responsibility for them. And also, if your party is to say family proceedings. Now, that's really interesting because that is used in other areas as well. So you could find that, for example, if you're in Children proceedings and the court feels that's necessary to make a normal station under occupation order. If the parties then are parties to the same family proceedings, the judge is entitled to make that order if necessary. So, for example, I've used that in the case of care proceedings, for example, it's possible to make these orders within public law care proceedings as well, if needs be okay. So we've got some provisions there now, like I say, when you're looking at definition of relatives, as you can see, the definition of relatives is actually very wide in that regardless of mention. So you've got the long definition, there's a bear that in mind. Now let's look at the types of orders. So the first order then under the fact that you may be pursuing is the non molestation orders. Okay, so section 42 of the Act covers this. And as far as this is concerned is that it provides for orders containing provisions prohibiting a person and for molesting another person. So it's used in practice to prohibit violence, threatening behavior, harassing, pestering or otherwise interfering with? So it's actually very wide. It could cover, as you can imagine, a number of situations such as for example where somebody is using or threatening violence harassing, interfering with, it could be texting the person, communicating with them, harassing them through social media, for example, silent phone calls going to their uh their home and staring at them. Uh Any of those factors, for example, can come within this and also where you're effectively invading their their private space. So it's very wide in that regard. And this is where can the court the question is can the court make disorder of the initiative and this case of E. T. Which was a 20 17 Court of pure decision, Lord Justice Macfarlane uh as it was then made it very clear that the court can make a normal station order if an application has been made with the family proceedings or with another family proceedings be instituted or where the court feels it necessary to do so. So in fact incoming made by the court of its own initiative as well. So that's possible in any family proceedings in that regard. And that therefore gives the court the permission to be able to make these orders of their own initiative if it felt necessary in the circumstances. So that is as you're not possible. Now, when we look at the relevant child, what do you mean by that? And the relevant child is any child and who As you can see on the section 62 subsection two is or might reasonably be expected to live with the parties. Okay, so this could be not just biological Children, both of them. It could be that a child is in the household who is affected who is has been adopted by them or the fostering the child. Or it could be saying nephew or niece, for example, is living with them. So any of those Children living with them or may reasonably expected to live with them could then be the subject of getting protection as well under the auspices of this legislation and with these non molestation orders, as we said, and both occupation orders, which will look at in a bed, you can get these either by whether freestanding application. So it might be that it's just this application that's launched. Or it could be within the context of the family proceedings. So, for example, you could be in Children proceedings, could be financed proceedings, it could be within divorce proceedings and it felt necessary to make these orders within those proceedings. And as I mentioned, the court can actually make these orders of their own initiative as well within family proceedings. So what's the criteria for these? What is contained within section 42? Subsection five of the Children Act, where a judge will take into account all the circumstances of the case, including the need to secure this safety, health, well being and health of the of any relevant child. So, the judge in practice when they are being asked them to adjudicate whether to grant is order or not. Well then take into account all the circumstances. So what evidence is there of of the behavior, whether it's violence threatening behavior to harassing the pestering or otherwise interfering, Which would then which would then justify the need for this order. So you can see those factors which are then pulled together for the court then to consider in deciding whether to make the order or not. The other order. And uh as I mentioned, is the occupation order. Okay, so this order is principally made within sections 33 to 40 of the Family Law Act of 1996. And the occupation order and is used to regulate occupation of the family home, the family home being the dwelling home, you can only get an occupation order in relation to that property. You can't get these orders for, say, the second property, the rental accommodation, the place of work at the school or so forth. This can only be used. The occupation order to regulate occupation of the family home. I either home that they lived in were intended to live in as the family home. So, if there were three properties that they owned, you can only get this in relation to the one property which was the principal home that they occupied or intended to live in as the family home. So that's where this comes into play. There. Now, there are two preconditions, therefore, today's firstly the parties must be associated. So you're back to section 62 and 63. And secondly, as I just mentioned, the property must be the dwelling has in which they lived or intended to live in. And once you've determined that, then there's five classes of occupation orders and each has its own different requirements. So you've got to come Within one of those five requirements insofar, as that's concerned. So, in practice, what you find is the two main ones, we tend to apply And are sections 33 and 36 And 33, when you're applying under that, what effectively, then inviting the court and to be satisfied on is that your client has got what's called a right to occupy the property in property law or if they have homeless rights. Okay. And we need to then think about how that works. So that could be where your client, for example, always the house in which case obviously they've got property rights to occupy their, my owner has solely on the male only jointly as joint tenants or tenants in common inequity. Uh And the other situation is where there may be quite a beneficial interest in the property through the principles of the trust law, such as constructive trust, we're stopping otherwise, so that then also gives the right to occupy the other is if they are married to the other personal they're they're in a civil partnership with the other person. And even if the house is in the spouse or civil partner's name, by virtue of marriage, by virtue of civil partnership, they've got the right to occupy. So in the case of married couples, section 30 of the family worked in 1996 would give the non owning Spouse the right to occupy the family home. And hence they could apply in the section 33. And finally, if they are renting accommodation. So if for example, a lady is the 10ant and she's there for got a legal right to live in that property, she can then apply The Section 33 4 in order to require the court to require the other person to vacate the property. Okay, so that's where 33 comes in. So we've just looked at the kind of situation there and we got to thinking about the many of orders available. So if you were successful in bringing a claim Via section 33 foreign occupation order, what kind of order could the court actually make? Well, these are the menu of orders that are available. This is what the court can actually do for you, the first and foremost, that can enforce the person's entitlement to remain occupation against the other. So effectively they can say right, we're going to make an order that the wife, for example, is permitted to live in the house. The exclusion of the husband so she can occupy she can continue to occupy secondly, can require to respond to permit the applicant to enter and remain drilling a part of it. Okay? So sometimes divide the house up so that she stays in part the property, he stays in the other. So you can have that you can regulate the occupation in that regard. And also, not only can they ought to be used to require one of them to vacate, but also to prohibit restrict or suspend the exercise of their rights. So that could be where the person is not only required to vacate, but they are prevented from returning to property. Sometimes you can have an order whereby they are prohibited from a certain geographical perimeter surround the property from returning so the order may say they're not allowed to come within certain streets? All votes are joined the property. So he could have that as well in that regard. Uh And if you can see the order is very wide in that regard. So it could also be used to regulate in terms of time. So it could be that the order provides that the wife, for example, is allowed to stay, they say Mondays, Tuesdays, Wednesdays and the husband stays there for the other four days, for example. So it could be used to regulate in terms of time or so what? So they copy that. Okay, So like I said, you can exclude the respondent from a defined area in which the property is actually situated. So what the grounds for these orders. So if you Are playing under section 30 300 basis that your client has got a right to occupy the property and are seeking for an order that the responses to vacate and your client is to remain in the property to exclusion. What the fact is that the judge will consider what these factors are known as what's called a balance of harm test. And this is contained if you're applying under section 33, under section 33 subsection seven of the the family worked in 1996 and what the court will take into account and he says they will ask themselves this question. Who will be worse off? So who will be worse off? So is it the wife and any Children? If we do not grant the order in her favor? Or is it the husband and any Children? If we do grant the order against him? So, who is going to be worse off? So, as you can see, it's as if it appears the court that the Apple control evaluate child is like self a significant harm. A tribute to the conduct of the respondent. If the order is not made, So basically, they would suffer more harm than the respondent would suffer if the order were made. Mhm. Then the courtyard made the order. Unless it appears like I said, that respond to any relevant child is like suffer significant harm if the order is made or the harm suffered by the respond to any child is greater than our great greater than what the applicant will suffer. So, it's a question of balancing the harm one against the other. So let's say I'm for the applicant and we can make her that she will suffer more harm if the order were not made versus the harm he will suffer. If the order were made, in which case the Court will then be satisfied on 33/7 and I'll grant the order in her favor. But if the balance of harmon not met in her favor. So, it's a significant harm test is not met in her favor, then the court is still permitted to then go on and consider these Other factors under 33 6 that it can still consider these factors in deciding whether to grant the order or not. So it's these four factors that they will consider. And these are first and foremost, the housing needs and housing resources of each of the parties and indeed of any relevant child. So what's the position with the housing for him and her? Have they got somewhere else to live? Can she go else? Where can he go elsewhere? Has he got to say his parents, his family, you can go to, can she go elsewhere. What about the local housing authority? Would they be up to rehouse her or him on the basis of vulnerability, for example, financial resources of each other parties? Where do we stand there in so far as the impact that that will then have on on each other in that regard? Has he got means available to put elsewhere? How is he? So, looking at those factors and you're also looking at the likely effect of the ordering decision by the court not to exercise its powers? So if the court decides not to make the order requiring him to move out to the property, then in that situation, what impact will that have on the health safety and wellbeing of not only the parties, but you need to Children and finally looking at the conduct. So what's the conduct between them? So who's been causing the difficulties because that will obviously way against in favor of them granted the order if it was felt necessary? Okay. So you can see therefore one of the practical things we need to be reminded when you're applying The criteria in the section 33, you need to therefore first and foremost Supply the factors under 3372 significant harm of balance of harm test and if that satisfied and he should get the order. But if not, Then I would suggest you look at 33/6 and make sure the court is taken through that. And therefore this is something that you need to lay out very clearly in your client's statement in support. So as to make it clear for the court who is then adjudicating on this for you? There are other sections as well of the act which allows one to be able to apply and they're there for the purposes of of an occupation order. So for example, the sections 35 which is where your client is a former spouse of former super partner where they uh in that situation do not have the right to occupy but the other does. So this could be with her. You've got former wife where she still lives in the household but her husband. Former husband rather she's now obtained a decree absolute but she's still living in the house and they haven't yet result of finances. So even though she's got no right to occupy any longer because she's lost that by virtue of divorce, She can still applying to 35. The judge will take into account the length of time it's been since the divorce in deciding whether to exercise their authority to grant the order. And section 36 is fairly common. This is where your client is a cohabiting to former co habitants under and and uh where they are not entitled to occupy. But the other is, so this is one of the houses saying the man's name and the lady living with him. And then there's difficulties and she's instructing you to apply for an order for him to move out. And that's where even though she hasn't got a legal right or beneficial right to be there, she will say, look, it was cohabiting with him and therefore I'm applying under 36. The judge will take into account how long it's been since they last, how long it's been since the last cohabited or how long they were actually cohabiting for. and section 37 away your spouse or former spouse or civil partner. Former civil partner. But neither of you have a right to live there. That could be where they're living with the in laws for example. And there's a difficulty. And then either of Them can apply to require the other to vacate. And finally, 38 is exactly same. You're cohabiting is a former cohabit ease neither of you have the right to occupy. So it's like 37 except here. They are neither married nor civil partners. Okay, so that's not used as often. So 30 three and 36 or more common sections in practice that people would be relying upon. Now, the other thing to bear in mind when you're pursuing these orders is are you going to be going for these orders without notice? Section 45 of the act covers this as you can imagine, given the nature of what we're dealing with. Sometimes these applications may have to be made in an emergency the same day without giving notice he as a person. And the criteria for that is contained within Section 45 Subsection One of the Act. So the first one which we often rely upon is if there is any risk to the applicant or a relevant child, uh attributable to respond to the order, were not made immediately. So that could be where So the applicant is saying to you that they were the victim of abuse that took place recently, say yesterday, three days ago and they worried that it's going to happen again. There were subjected to problems this morning. The problem is if you went unnoticed hearing, which won't be heard certainly for a few days, if not longer, that may prejudice your client in that it may place them at risk if there was a further reputation of what's happened recently and that's where you make up for the order without notice were therefore it's just you and your client and the court, the other party won't be told. And if the order is granted and it will be for a short period of time, with a view to think giving them that short time, short term relief and protection until you have a return date normally after uh up to about two weeks later. The other situation where you may go for disorder without notice is where if your client is likely to be deterred or prevented from pursuing the order, if it's not made immediately. So that this could be where your client is worried that if the order was not obtained without notice and the other person was served with the application. With a view to having a hearing say later on in the week. And if your client is worried about the repercussions of that, about how the respondent may act upon being sold in the papers and he or she may act violently and place your child at risk. And that maintained prevent your client who wanted to pursue the order because of the reprisals and the repercussions. And that's where you may wish to go for the order with that notice. So that's the other one and the other one is if two respondents evading service and the order that is being sought for the applicant and or child is such that there will be severely seriously prejudiced by any further delay in service. So that was not used as often the first to grants are more common in practice. So make sure in your state to support your setting out why the order is being sought with that note is very important to make sure you do that. And section 45 1 improvised that we're not, no disorders may be made then when the cornfields it just inconvenient to do so. So of course they can be made in appropriate cases now tied in with that. I also want you wanted to mention a position with additional orders under section 40 of the family law work. So this is where let's say you're for the applicant and they're seeking an order for by way of an occupation order to require the other person who vacated property. So you're for the wife, in example, we've been using and she's been the homemaker for a very long time. She's been looking after Children, raising the Children, looking after household, looking after husband. But he's the one who's bringing the money in. And of course, if she then feels it necessary to seek an occupation. Ordinary circumstances, where does she stand with, for example, continue to pay the mortgage or event in those circumstances. And the other bills. And that's why she made structure To apply for an order under section 40. uh so that the husband in those circumstances is also required to for example, subject his means of course and subject to her need uh make a contribution towards the mortgage or event or other utility bills. So this is where you can get an order for this additional provisions in there. And the court can insert this on the main occupation order and they can impose this on either party. So for example, imposing on either of them the obligation to repair the property capable of being maintained to pay the rent or other out coins for example, and maybe to order that the occupies part even makes periodical payments to the other respect to accommodation. If the other is in touch through occupies. That could even be that and also granting permission possession of under furniture or other contents and to take reasonable care of the furniture and other contents. But one thing to bear in mind is there was this case called Mob in the year 2000 which did say that there was no power to commit a default to prison. So if for example, the wife was to get one of these orders so that the husband is required to give her an amount of money to continue to pay the mortgage. And if he was to fail to do so and she decided to take the matter before the court, even though the court can consider matters related to maybe a cost application and can raise inferences to his behavior. What the court cannot do is impose a prison sentence. You can't commit him to prison for failing to comply with this order is no provision for that for the purposes of contempt of court. It's important to bear that in mind. Okay, so well done for community end of his first session, where we spent some time in looking at the the Family Law Act, and also the various orders that can be obtained, and also the criteria in so far as that's concerned. So in the second session, I'm going to be going through some more in relation to such applications, going through specifically the procedure with you and particularly the position with return dates. So thank you very much indeed for listening, and I'll speak to you next time. Thank you very much. Bye for now.
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