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Re W (Minors) [2016] EWHC 2226 (Fam)

Judgment in which final orders are made in relation to an application by a father for a location order and guidance is given concerning the way in which the President's Guidance in respect of the duration of ex parte orders is to be interpreted.

This is a judgment given by Mostyn J in which he makes final orders in relation to an application by a father for a location order following the breakdown of his relationship with the children's mother.  There were concurrent proceedings in the Central Family Court for child arrangement orders and an application had been made by the mother for a non-molestation order in the Family Court at Bow.

It is in relation to the latter application that Mostyn J's judgment is of wider significance for family lawyers.  The mother had sought, and obtained, an ex parte non-molestation order which had been made for a period of one year, with provision in the order for it to be "considered at a further hearing on a date to be fixed by the court officer on request by the respondent".  This approach, as the judge points out, clearly flouts the guidance given by the President in the President's Practice Guidance of 13 October 2014 in which it is made clear that the duration of an ex parte order prior to a review at an inter partes hearing should not normally exceed 14 days and that provision must be made for a specific return date.

Rather than direct his criticism at the district judge who made the order, however, Mostyn J uses his judgment to take particular issue with the note which prefaces the Guidance in the 2016 edition of the Family Court Practice ("the Red Book") which he describes at para. 10 of this judgment as "intemperate, disrespectful and legally wrong" and that "in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate".  The note suggests that the Guidance is unworkable in practice and leaves victims of domestic violence without sufficient protection.  Mostyn J emphasises the need to balance the protection of victims and the impact on respondents of an order being made ex parte.

Continuing his criticism of the editorial note, the judge makes it plain (at para. 11) that:

"It is for the higher courts to give guidance as to the interpretation of statutes and it is certainly within the remit of the higher courts to specify how a discretionary power in a statute is normally to be exercised.  And when the higher courts give such guidance in a decision, then that is binding on the lower courts - see the decision of the Supreme Court in  Willers v Joyce (No. 2) [2016] 3 WLR 534 at para.5."

He therefore uses this judgment to give just that guidance, with the clear intention of removing any doubt about the way in which the President's Guidance is to be interpreted.  An ex parte order made under the Family Law Act must specify a return date and the expiry of the ex parte order should normally coincide with that return date.

Summary by Sally Gore, barrister, Fenners Chambers
___________________________

No. FD16P00364
Neutral Citation Number: [2016] EWHC 2226 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Wednesday, 10th August 2016

Before:

MR. JUSTICE MOSTYN
(In Private)

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Re W
(Minors)


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MR. A. G. PERKINS appeared on behalf of the Applicant Father.

THE RESPONDENT MOTHER appeared in Person.

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J U D G M E N T
MR. JUSTICE MOSTYN:

1 I am concerned with two children, A who was born on 1st August 2006, and J, who was born on 17th September 2014.  The applicant is the father of J.  He is not the father of A but he is his stepfather.  A was born to the respondent mother in Russia by virtue of a prior relationship. 

2 At some point in the latter part of the last decade, the mother and father entered into a relationship and they were married in Russia in September 2012.  They came to this country in August 2014 and the following month, as I have already said, their son, J was born.  They lived together in a one bedroom flat in the East End of London.  Their relationship was stressful and stormy.  Their problems were probably aggravated by the inadequacy of their accommodation.  However, I think the father is probably right when he says, candidly, in his witness statement, that "both the respondent and I are stubborn and bad tempered and therefore this does not assist the situation."

3 The relationship between the parties completely broke down on 30th June 2016 when the mother left the home and went to live at a confidential address which is a refuge.  At that time her passport and that of A were with the Home Office in circumstances where her immigration status and that of A are uncertain.  According to the father's witness statement, the respondent mother has applied for immigration status for herself and for A but that has been refused.  She has appealed and is awaiting a date for the hearing of her appeal before the first tier tribunal.

4 Following the departure, the father issued an application on 8th July 2016 in the High Court, seeking to invoke this court's inherent powers to locate the children.  The application that was made asks for permission to apply for orders in respect of A as he does not have parental responsibility; a Prohibited Steps Order, preventing the removal of the children from the jurisdiction;  a Location Order as the whereabouts of the children were unknown;  and a request to the Russian Embassy and the British Passport Office requesting that no further passports be issued until further order of the court.  It is to be noted that the first two heads of relief that were sought, namely Permission to Apply under s.10 of the Children Act and a Prohibited Steps Order, are not powers exclusively vested in the High Court.  Those are powers which the Family Court can and should fully exercise.  However, the power to grant a Location Order, and  the power to request a foreign mission not to issue passports, are solely within the jurisdiction  of the High Court, and so in those circumstances it was appropriate for the application, particularly for a Location Order, to have been made.

5 The application was granted on the same day, 8th July 2016 and the Location Order was made and, in the usual way, it included the terms of a  Passport Order.  There were also orders made for disclosure by various agencies in order to seek to locate the whereabouts of the children.  As a result of the Disclosure Orders being made, the local authority revealed the mother's address to the tipstaff and in consequence the Passport Order was duly executed and the mother's expired passport and an ID card were taken from her.  While all these things were happening, the mother herself applied through her solicitor to the Family Court sitting at Bow for a Non-Molestation Order.  Her application was made on 19th July 2016 and she made her ex parte application on the same day.  I will come back to that order a little later. 

6 In recent days the father has issued a yet further set of proceedings in the Central Family Court, seeking a Child Arrangements Order in respect of his son, J and also seeking permission to apply for a Child Arrangements Order pursuant to s.10 of the Children Act 1989 in relation to A.  That application for permission to apply for s.8 orders is properly made to the Central Family Court.  So, as things stand at the moment, there are three sets of proceedings.  There are the High Court proceedings; the proceedings for non- molestation in the Family Court at Bow; and the father's application for Child Arrangements Orders in the Central Family Court.  The proceedings in the High Court have now run their course in that the children have been located.  It is only necessary for me to conclude those proceedings by making final orders in relation to A, and in this respect I certainly do not need to grant the father permission to apply.  He requires permission to apply for s.8 orders in relation to A, but he does not need permission to apply to the High Court for  the exercise of inherent powers in relation to A, and it is appropriate for me, in those circumstances, to make an order in relation to A that in the event that A's passport is returned to the mother by the Home Office and, for that matter, in the event that her own passport is returned to the mother by the Home Office, that she must immediate lodge them with the tipstaff.   As a counterpart to that order, the father has offered that his own passport and the passport of J, which he has, will be voluntarily lodged by him with the tipstaff, and I agree with that step and they will be held by the tipstaff along with the other documents pending the final resolution of the child arrangements proceedings which are being commenced.  I do not agree that it is necessary for me to order in relation to A that the mother should hand to the tipstaff every document relating to that child that could enable him to obtain any Russian travel document in circumstances where the court will make a request to the Russian Embassy not to issue a replacement Russian passport for A without the court's permission.  

7 Russia is a co-signatory to the 1996 Hague Convention, whereby Custody and Access Orders, to use the old language, are mutually respected and in those circumstances it seems to me to be unnecessary for me to go further in relation to the documents that must be lodged with the tipstaff beyond the passport of A itself, as well as the passport of the mother.

8 It is appropriate for me to make an order forbidding the mother from removing A from the jurisdiction, or from his present address for the time being, and I further make an order that the mother must not obtain any further document which would enable A to leave England and Wales.  I confirm in this order that the port alert which already exists in relation to J should be extended to A.  Those orders will conclude these proceedings and they do no more than put A on the same footing as that which had already been obtained by virtue of earlier orders in relation to J.

9 I have mentioned that the mother applied on 19th July to the Family Court at Bow.  On that day, District Judge Vokes made a Non-Molestation Order in favour of the mother and against the father.  That order was, as I have said made ex parte.  The order states on its face that it will endure until 19th July 2017.  The order states in para.1 that "this order will be considered at a further hearing on a date to be fixed by the court officer on request by the respondent."

10 The order made is in clear violation of the President's Practice Guidance of 13 October 2014 entitled "Family Court - Duration of Ex Parte (Without Notice) Orders."  It is in violation of that Guidance in that the period for which the order endures - one year -  is greatly in excess of the normal period specified in the Guidance of 14 days and further that the order does not provide on its face for a specified return date.  It is perhaps unsurprising that this order was made in this form given the terms of the editorial note which prefaces the Guidance as it is printed in the 2016 edition of the Family Court Practice at p.2681.  This note, which in my judgment is intemperate, disrespectful and legally wrong, in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate.  But even the editorial note does not go so far in its incitement to non-compliance as the order that was made in this case.  Even the editorial note accepts that a fixed return date must be provided for, at which a full inter partes hearing will be conducted.  In this case not even that was provided.  Instead it was left for the respondent to apply for a return date. 

11 It has been stated time and again that ex parte relief of this nature must be very much the exception rather than the rule because it offends a fundamental  principle of natural justice which is that judicial decisions should be made after having heard both sides.  Lord Hoffmann has described the principle of Audi Alteram Partem as "salutary and important" but I would go further and say that it is a virtually indispensible ingredient of the administration of justice which can only be departed from in circumstances of grave risk of harm, and then when it is departed from should be mediated by the earliest possible inter partes hearing.  The editorial note criticises the  Guidance as unworkable in practice and which reduces protection for victims of domestic violence.  I strongly disagree.  On the contrary, I believe it to be eminently workable in practice.  More importantly, I believe that it fairly balances the necessary need for protection for victims of domestic violence with the fundamental right of a litigant to be heard in a case which concerns him.  The editorial note implicitly asserts that the specification of the normal duration of an ex parte order as 14 days in para.5 (iii) of the Guidance is ultra vires.  It states that there is no statute or rule requiring it.  That is true but it should be understood that the specification, as well as the guidance generally, derives from authorities of the Court of Appeal and the High Court (see para.4).  It is for the higher courts to give guidance as to the interpretation of statutes and it is certainly within the remit of the higher courts to specify how a discretionary power in a statute is normally to be exercised.  And when the higher courts give such guidance in a decision, then that is binding on the lower courts - see the decision of the Supreme Court in  Willers v Joyce No. 2 [2016] 3 WLR 534 at para.5.  Of course the normal specification of 14 days can be departed from, perhaps by a fairly long period, if the facts of the case warrant such a departure; but where the higher courts have specified a normal starting point of 14 days then that is where the lower court should start.

12 The note suggests that para.5(iv) of the guidance is problematic but I simply do not understand the criticism.  It provides that the order must state on its face what the return date is and this is plainly the only reasonable interpretation of s.45(3) of the Family Law Act 1996.  The Guidance goes on to state that the return date should normally coincide with the date of the expiry of the order and again it is difficult to see how any complaint as to the validity or logic of this can be made.  The note suggests that para.6 of the specimen order (which is within para.8 of the Guidance) is ultra vires which in my opinion is frankly absurd.  It derives in fact from a decision of my own referred to in the Guidance which is binding on the lower courts.

13 Finally, the note states this:  "The Guidance needs to be amended.  It has been accepted that there is nothing wrong in law with an ex parte order that lasts for six or 12 months provided that in all cases a full hearing is held as quickly as possible to review the order."  I do not know where, how, or by whom this has been "accepted" since the Guidance was promulgated. Of course it is strictly speaking correct that an order can last for six or 12 months if the facts clearly warrant a departure from the normal period of 14 days, which is, I repeat, there to balance the need to protect the applicant from violence against the fundamental right of the respondent to a fair hearing. 

14 Even by the terms of the editorial note, the order made in this case was highly improper in that it did not provide for a full inter partes hearing in order to review the order as soon as possible. 

15 In my judgment, the lower courts must faithfully adhere to the guidance until and unless it is amended by the President.  No doubt representations can be made to him by the Association of Her Majesty's District Judges, but until the Guidance is altered it must be followed.

16 In the circumstances, I order that the non-molestation proceedings in the Family Court at Bow, number BO16F00323, be moved  to be heard in the Central Family Court alongside the application recently issued there by the father.  I further direct that there should be the earliest possible return date fixed in the Central Family Court for the non-molestation injunction to be reconsidered.  I further direct that in relation to the proceedings recently issued by the father, the Family Court should provide an early hearing date for him to be able to seek orders for contact to his children.  I record that the mother has before me agreed to a contact regime whereby the father will see the children once a week in a contact centre, and in addition he will be able to speak to them by Skype.  That concession by the mother will be recorded on the face of the order.  I am not, in this judgment accepting that that represents by any means a reasonable quantum of contact but it is not the function of this court to deal with issues such as contact.  Those are matters properly dealt with in the proceedings which the father has issued in the Central Family Court.  I expect Mr. Perkins to translate what I have said into an order to be sent to me as soon as possible.