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Non-molestation orders: Valid Service in the time of Coronavirus

Rachel Cooper and Michael Horton from Coram Chambers consider the service of non-molestation orders in the time of Covid-19.

 

Rachel Cooper, barrister and Michael Horton, barrister from Coram Chambers .


Must the applicant effect personal service of a non-molestation order on the respondent? One might be forgiven for thinking that the 'stay at home' provisions in place due to the Coronavirus pandemic would constitute a good reason for a court to authorise service by another method, such as electronically?

According to the Red Book commentary, the only issue to be decided on an application for service by an alternative method is whether service under the prescribed methods are impractical. The impracticality of personal service in the context of Coronavirus was acknowledged by the CEO of the NCDVre, Mark Groves, on 23 March 2020. At the start of lockdown, Mr Groves announced that due to social distancing guidelines the NCDV were instructing process servers to effect alternative service wherever possible. Alternative service was to be attempted first with personal service being used only as a last resort, a complete reversal of the normal procedure. Solicitors using NCDV process servers were asked to seek orders allowing for alternative service.

In this article, we explore the different approaches taken to service by alternative methods as between the family court and the CPS. We consider the purpose of service and note that Parliament's original and clear intention was for respondents to be aware of the existence of an order only. Finally, we consider the approaches being taken during lockdown and how this impacts the safety of applicants. 


The Rules

Is alternative service good enough when it comes to orders that carry penal or criminal sanctions for breach?

FPR rule 10.6(1) provides that 'the applicant must, as soon as reasonably practicable, serve on the respondent personally – (a) a copy of the order ...' This appears at first instance to be an absolute unqualified requirement for personal service of an order made under Part 4 of the Family Law Act 1996, which includes non-molestation orders and occupation orders.

It is understood that some courts are taking the view that nothing short of personal service will do and that there is no discretion to allow for service by another means.  Other courts are following the conventional approach, expecting that personal service will be attempted and requiring a good reason to dispense with personal service, and therefore not treating the pandemic as an automatic excuse for not having to bother with personal service.  At the other end of the spectrum are courts which, relying on FPR rule 6.19 with respect to alternative service, have adopted standard form orders which automatically provide for alternative methods of service. For instance, some courts require service by first-class post to the respondent's last known address, plus one or more of email, text or WhatsApp.  Postal service to the respondent's last-known address, when he might be 'locked down' somewhere else, might be said to raise more questions than answers. On the other hand, where an electronic form of communication (whether email or phone messaging has been used recently, there may be a reasonable expectation that these electronic means of communication have travelled with them. In HC v FW (Financial Remedies: Assessment of General and Special Needs) [2018] 2 FLR  70, the court directed that the respondent be served inter alia by email (to an address known to have been effective in the past), by SMS messaging to his last-known mobile phone number, by private message to the husband's private Facebook account, and via a former professional adviser of the husband. These were all methods considered by the court to be within the contemplation of rule 6.19 and likely to bring the order to the attention of the respondent.

Paragraph 1 of the FJC Protocol on Process-Servers: Non-Molestation Orders of November 2011 [2012] 1 FLR 1226 makes clear that the respondent does not need to take the form or orders in his hand, but some attempt must be made to made to hand to them and tell him of their contents. This last part requires some minor modification in a world where social distancing is still required, but personal service can be carried out in a way which is compliant with social distancing.

The authors therefore take the view:

• personal service of a non-molestation order or occupation order should be the expectation in every case;

• despite the apparently absolute terms of FPR r. 10.6(1), the provisions of rule 6.19 allows for service of a non-molestation or occupation order by an alternative means. The rule allows the court to authorise service by a method or at a place not otherwise permitted by Part 6, provided 'it appears to the court that there is a good reason' to authorise such service;

• accordingly, if there are particular circumstances which justify a different method of service, including evidence of the respondent evading personal service, the court is able to allow for such service.


Enforcement of non-molestation orders

Breach of a non-molestation order is both a criminal offence and a contempt of court. 

In terms of the civil action of contempt, ordinarily any order which it is sought to be enforced by way of committal for contempt must have been personally served: FPR rule 37.5.  However, rule 37.8 allows for the court to dispense with personal service, if satisfied that the respondent has become aware of its terms by being in court when it was made, or by telephone, email or otherwise.  The court hearing the contempt application can do this 'retrospectively' at the time of the committal application, but this will not be undertaken lightly, and any applicant who wants to be sure their order will be enforceable will usually be advised to sort out this issue at the time the non-molestation order is made, ie before any breach.

When the Domestic Violence Crime and Victims Act 2004 came into force in 2007, it inserted s 42A into the Family Law Act 1996.  This made breach of a non-molestation order, without reasonable excuse, a criminal offence.  Section 42A made specific provision for what the respondent had to know about the order, in the case of an order made without notice.  By s 42A(2), 'in the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.'  There was no equivalent provision in the case of orders made on notice.

The Parliamentary intention could not be clearer:

? where an order was made without notice, the respondent could not commit the offence unless he had become aware of the existence of the order;

? the respondent need not be aware of the terms of the order – the assumption being that non-molestation orders were in standard terms and that a respondent ought to know what conduct would be prohibited;

? in the case of an order made on notice, strictly speaking the respondent need not know of either the terms or the existence of the order – he would commit the offence unless he had a reasonable excuse, and ignorance of the terms or existence of the order might well amount to such a reasonable excuse.

If there was any doubt about this from the wording of s 42A, it was also clear from Hansard.  Amendments were tabled to provide that a person would not be guilty of an offence in all cases unless they were aware of both the existence and the contents of the order, or after becoming aware of the existence of the order, he deliberately evades service. Baroness Scotland, the responsible government minister, rejected this amendment: see Hansard 4 March 2004, HL Deb col 871:

'My Lords, when the issue of prosecution for breach of "without notice" non-molestation orders arose in Committee, I explained that the Government had drafted Clause 1 to avoid the existing problem of respondents deliberately evading service of an order and then breaching it with impunity on the grounds that they were not aware of its terms.
...

I make it clear straightaway that I sympathise with her intention, but I hope that the noble Baroness will forgive me if I disagree with the need for this amendment. Your Lordships will recall that the Government built a safeguard into these provisions: a person can be found guilty of breaching a non-molestation order only if they did so "without reasonable excuse". As I explained in Committee, this proviso could, for example, operate so as to protect a respondent who co-operated with the service of an order but who, because of blindness or illiteracy, was unable to discover its terms before inadvertently breaching one of them. The circumstances of such a failure to comply would be considered by the court, and I believe this provides an adequate safeguard. It should not, of course, be forgotten that non-molestation orders generally prohibit harassment of the victim and it might not be unreasonable to expect a respondent who is aware of the existence of an order to refrain from such harassment.

I am also concerned that this amendment would make it harder to hold respondents to account for breaching an order because as well as proving that the order's provisions were breached, the prosecution might also have to demonstrate that the respondent had deliberately evaded service, and this would potentially be very difficult to prove. As I believe the noble Baroness mentioned, when we last discussed this, the noble and learned Lord, Lord Donaldson of Lymington, suggested that a bright lawyer would inevitably protest that the respondent could not be found guilty because he did not know the terms of an order. Should this amendment pass, the same lawyer would simply argue that his client could not be found guilty on the grounds that they had not deliberately evaded service. It might then be difficult to prove that the respondent had, for example, intentionally not answered the door to the process server.

The amendment could also prevent the conviction of respondents who, while not deliberately avoiding service of the contents of an order, were aware of its existence and made no effort to ascertain its terms before breaching one of them. We also need to bear in mind that non-molestation orders generally only prevent someone from undertaking behaviour that the respondent knows would be unacceptable, such as harassing the victim. For those reasons, I cannot accept this amendment. However, the noble Baroness should be reassured that the reasonable excuse to which I referred would enable the court in those circumstances to listen to what the defendant had to say and to mete out justice."

The law is clear that a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order. The law does not require that a respondent is aware of the contents of an order.


Order in force only 'from and after service'?

Notwithstanding that clear statement of Parliamentary intent, over time non-molestation orders became much longer and more specific as to the conduct prohibited. Orders often provide that the order will only take effect on personal service and may state: 'with effect from the time of personal service, the respondent is forbidden to ...'.  This was a retrograde and unnecessary step.  Not only did it seek to rewrite s 42A, it also stood in the way of any enforcement, whether by committal or by means of the criminal law, in cases where the respondent deliberately evaded personal service, or was aware that an order had been made and deliberately set out to breach the order, relying on the absence of personal service.

This step taken by the courts was apparently taken in reliance on cases relating to anti-social behaviour orders, including R v Boness [2005] EWCA Crim 2395 and the fact that the Court of Appeal had deprecated reliance on the reasonable excuse defence.  In fact, such reliance was misplaced - in R v Boness, the defendant had been forbidden from 'congregating in groups of more than six persons in an outdoor public place.' The court took the view that this was a disproportionate order to make, in that it would prevent the defendant from attending any outdoor sporting event, and such behaviour was not necessarily anti-social. Whilst the defendant could avail himself of the reasonable excuse defence, the court considered that this would not be an adequate safeguard (see Hooper LJ at para 80). The court therefore held that the making of a disproportionately wide anti-social behaviour order could not be saved by the reasonable excuse defence. 

The case of R v Boness says nothing about the need for personal service of non-molestation orders or that the Parliamentary intention behind s 42A should somehow be subverted. The authors note that the most recent form of standard form orders published on the judiciary website rightly allows for the order to take effect 'once it is personally served on him or once he is made aware of the terms of the order whether by personal service or otherwise' (para 21 of order 10.1 in Standard Family Orders, volume 2). The new wording reflects more clearly Parliament's original intention with respect these orders.  It might be better for the clause simply to be deleted, and non-molestation orders to be silent as to when they take effect.


Alternative service

If an order states on its face that it will take effect once it is either personally served or the respondent is made aware of the existence of the order, what is the issue with service by alternative methods?

Alternative service where personal service is not available can cause practical problems. For example, some respondents do not have access to email or do not have a mobile phone. This may the case where a respondent has no fixed abode and sleeps rough either permanently or during periods of time. One firm of solicitors that we spoke to had enlisted the police to help serve such a respondent, but this is not the role of the police and uses up their valuable resources.

A key issue is the approach that the CPS takes to alternative service. The CPS is understood to not be accepting service via email and / or WhatsApp as legitimate or good service for the purpose of prosecuting an alleged breach. This is reflected in the way that the police have been interpreting orders for respondents during lockdown. In one case, the police informed a respondent that the CPS will not arrest them if the order was served electronically as the CPS will not be able to prove that the respondent read the papers. As set out above Parliament were clear that a respondent is not required to be aware of the contents of an order, only of its existence to be prosecuted. If a respondent is served and chooses not to acquaint himself with the terms of the order without reasonable excuse, then a breach could still be established. Ignorance is not a defence to the law. The same applies when a respondent is served by a process server.

In another case, an applicant was told by the police that a respondent to an order served by WhatsApp could legitimately plead that he had not taken it seriously because of the medium by which it was served. However, there is often evidence following service by electronic means of respondents replying saying "what is this?" and process servers replying, "it's a court order". Evidence such as this which proves beyond a reasonable doubt that an individual following alternative service was aware of the existence of an order. In such cases and in circumstances, such as a global pandemic, where personal service is impractical and potentially places lives at risk, it is unclear why the CPS would not uphold the law and prosecute such a breach. Some police forces are currently accepting Statements of Service by WhatsApp in order to arrest an individual for a breach. However, there is no formal guidance as to whether the CPS would accept this as evidence of valid service.


Conclusion

Personal service of non-molestation orders is not an absolute requirement, but it should be expected and attempted in every case unless there is a good reason for another form of service. It is important to allow for non-molestation orders to be capable of enforcement even where personal service has not (yet) proved possible, provided it can be shown that the respondent has been made aware of the existence of the order.

Issues around service highlight the wider problem of the lack of legal advice for lay respondents. They do not always know what constitutes a breach, albeit orders are written plainly. Although it is not the responsibility of the courts or process servers to ensure that a respondent understands the order, the current standard orders are an improvement on what went before. But the absence of legal advice for respondents arguably increases the risk to applicants and may increase the uncertainty on any prosecution of an alleged breach.

The purpose of non-molestation orders carrying a criminal sanction for breach is to provide greater protection for victims of domestic abuse and violence. The general statistic for the number of women who die as a result of domestic killings is two women each week. During the first three weeks of lockdown, 16 women died as a result of domestic killings, or over 5 women each week. Failing to prosecute breaches of non-molestation orders where respondents have been served by alternative methods and are aware of the existence of orders places the lives of some of the most vulnerable in society at risk or significant harm or even death.

16/06/20