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Take us somewhere new: Family Law Act 1996 Part IV applications in 2010 and beyond

Byron James considers current judicial attitudes to drafting injunctions under the Family Law Act 1996 Part IV and suggests an alternative approach designed to tailor the relief to the perceived threat.

Byron James, Barrister, Guildford Chambers

It is something of an irony that the practice of injunctive relief in its present form under the Family Law Act 1996 is itself under serious threat. There is looming large on the horizon a point at which the current regime for protective injunctive relief will have to pursue one of two paths available to it. This decision is likely to be hastened by the changes to public funding which are due to be introduced in the later part of 2010. Those changes will undoubtedly affect the role the barrister plays in future applications for injunctions under the Act.

The two approaches open for Family Law Act applications can be defined by the type of injunction by which it is intended complainants should be protected. Currently, Family Law Act injunctions are subject to something beyond a postcode lottery, with vastly different approaches taken by judges even in the same building. The main difference in the ‘two approaches’ is evident in the draft order that judges are willing to accept.

Specific drafting has been very much on the agenda since 2007. This is largely following the hugely influential FLBA lectures given by His Honour Judge Platt (and subsequent publication of the book of which he was a co-author, “Injunctions and Orders against Anti-Social or Violent Individuals”).  His reasoning was clear. Since it is now intended that non-molestation orders should be enforced in criminal courts, one must have regard to the nature of the offence one is creating and the extent to which the drafting of the order itself can affect the likelihood of someone being prosecuted for its breach. HHJ Platt often cites Manchester City Council v Lee [2004] HLR 177, a case dealing with an ASBO but with, he argues, applicable principles, where it was stated by  Chadwick LJ that the terms of an injunction should not be granted where they are not “readily understandable by those whose conduct they are intended to restrain”. It follows that the appropriateness of words such as ‘molest’ come under some scrutiny, in the writer’s view; ‘intimidating’ and ‘pester’ could also be added to such a list.

Despite some judicial unwillingness to deviate from the old form of wording of (for example) “the Respondent shall not intimidate, harass, pester or molest the Applicant”, it would appear that most now agree that such an approach is wrong. Furthermore, it leads to cases such as Grubb v Grubb [2009] EWCA Civ 976, in which appellate criticism was reserved for an order which included protection against ‘violence’, where violence had not been alleged and was not anticipated. This style of drafting will be termed throughout this article as the ‘old pro-forma approach’.   

The practice adopted by some courts as a way of avoiding the perils of such a narrow approach is to have a pro forma draft order which contains a list of (usually 11) specific acts that the respondent will be prohibited from doing. The intention is that the applicant should delete from the list acts inappropriate to the facts of his or her application, so that the final order is tailored to the circumstances of the specific case. The list might include: ‘unlawful violence’, ‘coming within [a certain distance] of the Applicant’s home’, ‘damage or attempt to damage or threaten to damage any property belonging to the Applicant’ and ‘communicating with the Applicant whether by letter, telephone, text message or other means of communication...’ This approach is sometimes restrictively applied by various county courts, which reject any form or wording not contained within the list. This will be termed throughout this article as ‘the new pro-forma approach’. 

There is a third method of drafting to be considered, which does not depend upon any pro forma at all. Given the broad statement of section 42(5) that the non-molestation order is intended to “secure the health, safety and well being” of the applicant, it seems odd indeed that the practical application of such is in restrictive form, whether it be in the old pro-forma style wording or the new. There is the potential for more effective protection and prosecution through injunctive orders, it will be argued in this piece, if the drafting of orders was specifically tailored to the affidavit that it filed in support of the application. The wording of the new pro-forma may be relevant in some, maybe a significant number, of orders but one can envisage many situations where the flexibility of being able to define a specific act of ‘molestation’ has benefits. This is especially so in the message being sent to both the applicant and the respondent, but also crucially to the prosecuting authorities who may be involved at a later stage. The order drafted need not be restricted to preventing acts that have occurred in the past. It may be considered appropriate to adopt a test of preventing “specific instances of molestation that have occurred or are deemed likely to occur based upon the incidences of molestation that have already occurred”. This shall be referred to throughout this article as the ‘flexible drafting approach’.

As has been stated, most would agree that the old pro-forma approach should now be discouraged. If that is so, there is, the author would argue, a choice between the new pro-forma approach and the flexible drafting approach. It will be submitted as a central theme of this article that the vastly differing approaches of judges throughout the country cannot continue. It can hardly be in the interests of justice that there are three very different ways of drafting such orders in operation today; how would an applicant feel if it was explained to them that in a particular county court of three judges that a totally different approach could be taken by each one and a different outcome as a result? Such a thing is more palatable when one is considering the application of the wide judicial discretion in, say, an ancillary relief case, whereby a bracket of reasonable outcomes exists and one could fall anywhere in the said bracket depending on the particular judge on the particular day. The reason for the disparity does not seem to be because of wide judicial discretion; rather, it appears to be because of the lack of guidance that exists in respect of how this should be approached. Protection from domestic abuse is something of a black and white issue; one can hardly argue for a bracket of possible outcomes where one is protected from a particular act of molestation: one either is or is not protected. It is why, in this regard, a practice direction is urgently required on point, setting out a standardised position for all to follow.

The future of role of the barrister may be crucial to which of two approaches, whether new pro-forma or flexible drafting, is the appropriate choice. This, unfortunately, may well be dictated by the proposed changes to publically funded fees later this year. Whilst this piece is not intended to deal in detail with the precise implications of the changes to publically funded fees, it nevertheless remains that one potential option is for an area such as domestic violence to be subject to the largest reductions in relative terms. It is also possible that interim hearings, as opposed to full on trials, will also be subject to significant reductions. As most barristers who act in Family Law Act hearings will know, a significant amount of work is done to seek a disposal of the matter before trial. In the writer’s experience (since no statistical evidence is to hand), the vast majority of applications are disposed of at the first return stage. Crucially, the drafting of the affidavit, order and FL401 are all completed under the ‘interim’ stage.

It may well be therefore that the new pro-forma approach is adopted going forward simply because it is ‘judicially friendly’. There is little doubt that the skill required in selecting and drafting specific clauses from an affidavit to be included in an injunction is probably beyond most applicants without representation. If, following the fees change, it is concluded that solicitors and barristers are unwilling/unable to do such interim hearings, there is likely to be an increase in the number of litigants in person coming before the court seeking protection, perhaps assisted by a support worker or charity without legal expertise. In such a situation, the new pro-forma approach has a huge benefit. It is clear, (almost) fool-proof and allows for much judicial time to be saved as such things can be completed in the waiting room outside with, one imagines, relative ease.   

However, is this a future that should be encouraged? It is, in a way, reducing the provision of protection being given to applicants to something of an administrative process. One wonders, for example, if an applicant is required to complete an affidavit, FL401 and tick the boxes of the new pro-forma, why personal attendance is even required at an ex-parte hearing. In time, will this function be reduced to judicial box work? By removing the level of skill required, and attention to the specific case on the day, what is the future for barristers’ involvement in such work? Perhaps reduced to the occasional trial, in the (apparently) rare event where such an order is contested or undertakings not given/accepted. More importantly, however, there exists the question of what sort of protection we wish to afford to victims of domestic abuse and what sort of system we want to help them. As soon as one is reliant upon any form of closed, restrictive checklist, one can imagine scenarios where pragmatism may be required and yet not available; there will always be judges who are willing to deal with such issues, but there will also be others who are not; a litigant in person is less likely to be as adept at spotting an issue requiring attention beyond the new pro-forma, and as successful at bringing it to the judge’s attention.

Either way, it is clear that direction is needed. The writer will always be in support of an individualist system, whereby applicants are afforded the benefit of expert advice and an injunction specific to their needs, one that protects them from the specific harms that they have suffered and from those that are potentially before them. This may ultimately prove to be at odds with the desire to make more judicial listing time available and to save money on the amount spent through such cases by the LSC, but the question remains as to whether these should be placed above the safety of those seeking protection and the extent to which the Court can help them remove themselves from an emotionally and physically desperate situation.   

4th February 2010

Guildford Chambers