Private Law Update
DS v AC [2023] EWFC 46
Judgment handed down by Mrs Justice Lieven DBE
Background
The parties were in a relationship between October 2021 – September 2022. During the relationship, the Applicant (A) worked in the Respondent’s (R) business. A applied on 8th November 2022 for an ex parte Non-molestation against R.
A’s statement stated that R was controlling and demanding. She further stated that R would buy her extravagant gifts and accused her of being ungrateful. When the relationship began to deteriorate, R texted A up to 30 times a day. In September, A ended the relationship by text, saying she would take formal steps should R contact her again. R attempted to call A on a couple of occasions and sent an email to her a few days later.
In addition, R had started small claims proceedings against A in relation to money allegedly owed to him. Subsequently, A counterclaimed in respect of wages due. In November, R emailed A to say that he had paid the wages.
Issues
A stated that she was applying for the order to be made ex parte as R’s behaviour was unpredictable and that if given notice, R may attempt to dissuade her from pursuing the application.
The Court listed the hearing on notice, with R attending the hearing but A failing to, therefore the application was dismissed.
A emailed the court to explain her non-attendance and asked for her application to be reinstated. A directions hearing was listed before Lieven J to consider reinstatement.
Law/Authorities Considered
The Judge considered the test under Section 45 of the Family Law Act 1996, along with the following principles:
- On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a)
- And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b)
- A without-notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R [1]
- The Court should use its powers under the FLA with caution, particularly at a one-sided hearing, or necessarily on a paper consideration without the other party having notice, R v R [1]
- “Molestation” doesn’t imply necessarily violence or threats of violence, but it can cover any degree of harassment that calls for the intervention of the court, Horner v Horner [51G]
- The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child)
- There does not have to be a positive intent to molest, Re T at [42].
Judgment
The Judge concluded that:
- The Court was entirely correct to refuse to make the order ex parte, as there was no basis for any order to be made.
- Such an order would only be appropriate where there is a significant risk of immediate harm.
- If a without-notice application is made, then the statement in support must expressly deal with why the case is exceptional and what the significant risk alleged is.
- Orders should not be granted when the evidence suggests some upset at the end of a relationship, and there be little or no evidence to suggest R’s conduct complained of amounted to “molestation”.
- There does not have to be a threat of violence, and electronic communications can amount to harassment and cause alarm. However, the conduct must be sufficient to justify the intervention of the Court.
- R likely sent R an excessive number of communications at the end of the relationship, however at the time of the application, that conduct had ceased.
The full judgment can be found at: https://www.bailii.org/cgibin/format.cgi?doc=/ew/cases/EWFC/HCJ/2023/46.html&query=(EWFC)+AND+(46)
EBK v DLO [2023] EWHC 1074 (Fam)
Judgment handed down by Mr Justice Mostyn
Background
The Claimant (father), who worked as a Royal Marine serviceman, made an application for contempt proceedings against the Defendant (mother), arising from the Defendant disclosing material from private law proceedings to the police. This application was reconstituted by Mostyn J as an application for permission to bring contempt proceedings.
Following an application by the Claimant in December 2017, proceedings regarding the parties’ daughter continued until December 2019 when a final order was made, providing that the Claimant would spend time with the child. Shortly after this, the Defendant initiated a second set of proceedings related to the child, seeking to suspend all contact. This was refused by a district judge and later refused upon appeal.
In August 2020, the Defendant reported to police that the Claimant was harassing her, and disclosed documents that had arisen from the proceedings in 2017 – 2019. The Claimant was then arrested. During the Claimant’s arrest, his mobile phone was seized for forensic examination. Prior to this, a police officer wrote an email to the Royal Marines HR department which resulted in the Claimant being subject to conditional bail, and created the precipitating event for defamation proceedings between the Claimant and the Chief Constable of West Yorkshire Police.
On the day that the Claimant was arrested, the Defendant renewed her application to suspend contact which was again refused, and the child was joined as a party with a Guardian being appointed. This second set of proceedings concluded in March 2022, with the final order being that of a shared-lives-with, and an order to prevent further applications without permission until March 2026.
Prior to the conclusion of the second set of proceedings, the Defendant had alleged to police that the Claimant had sexually abused the child, which was then referred to Social Services. It was later found following visits to the home and child’s nursery, that there was no evidence that the child had experienced sexual harm, and there were no concerns relating to the child’s behavioural or emotional well-being.
In January 2022 the Claimant attended the police station to collect his mobile which had been seized during his August 2020 arrest. At this point, the Claimant was also given two files which contained documents from the first set of proceedings. The documents which had been shared by the Defendant to police included the initial C100, an independent social work report from December 2020, the Claimant’s position statement from March 2020, emails from the district judge to parties, and a domestic abuse perpetrator programme assessment report from September 2018. This formed the basis of the Claimant’s application.
Issues
Mostyn J had several issues to determine, including the rules regarding disclosure from s.8 proceedings to the police, why the Claimant’s application required permission, and what test would be applied when considering the application for permission.
Conclusions
Mostyn J found that the strength of the Claimant’s contempt case against the Defendant was ‘maximal’. However, the Claimant’s permission to bring contempt proceedings was refused. This was on the basis that the Defendant’s behaviour amounted to ‘misconduct’, and she was formally admonished. This in essence achieved what the Claimant had set out for in his application, he did not seek any sanction, only a formal admonishment. Mostyn J also found that due to the disclosure being to the police, there had not been a breach of s.97 Children Act 1989.
Furthermore, the proceedings against the Chief Constable of West Yorkshire Police had recently settled, and it was found that it would be disproportionate for the same matter to be litigated in two sets of proceedings. Mostyn J also suggested that the Rule Committee takes a ‘serious look’ at the ‘Byzantine’ rules covering what parties can lawfully disclose to the police as parties to s.8 proceedings seem to be forced to ‘walk across a minefield of potential contempt and crimes’ if they seek police assistance during proceedings. The same was recommended for the 2015 Practice Direction, with the recommendation that this is reviewed urgently.
Full judgment: https://www.bailii.org/ew/cases/EWHC/Fam/2023/1074.html
Transparency Project
March’s Public Law update discussed a judgment handed down by Poole J in respect of the making of a Transparency Order at a Finding of Fact hearing. This article can be found here: https://crown-chambers.com/news-insights/public-law-update
The reporting pilot was launched in Leeds, Cardiff, and Carlisle on 31 January 2023 in respect of public law cases. The pilot is governed by the Transparency Implementation Group (TIG).
On 15 May 2023, the pilot was extended to include private law. In advance of this extension, an updated standard transparency order has been published. The pilot has also undergone a review process which highlighted areas requiring guidance. A further bulletin was published in April 2023 to support the guidance published on 26 January 2023.
The guidance related to Family Drug and Alcohol Courts (FDAC), Independent Social Workers, and ‘Making Lists Better’ is a suggestion to ensure that court lists include sufficient information to allow pilot reporters to make decisions about which cases to observe and report on. In respect of FDAC, there are two types of court appointments, normal hearings and fortnightly ‘non-lawyer reviews’(NLRs). The guidance confirmed that a normal hearing falls within the pilot and FPR2010 r.27.11, and as such Pilot reporters may attend as a right and may report if a transparency order is made. NLRs are not hearings within the case, and if a pilot reporter wishes to attend a NLR in a FDAC case, they must first attend a normal hearing and raise their desire to attend with the judge.
In respect of Independent Social Workers (ISWs), the pilot’s starting point if that social workers and CAFCASS workers are not named. The question then arose of if ISWs fall within these categories. It was concluded that if an ISW is instructed by a Local Authority only, taking the place of a Local Authority Social Worker, then they should not be named. If the ISW is court appointed as an expert, then they should be named.
In respect of ‘Making Lists Better’, a code has been developed for cases that fall within the pilot. A key has been published in respect of this code which is available on the TIG website and CourtServe. Furthermore, the practice of not naming Local Authorities on court lists is to cease and is to be replaced with ‘Local Authority Name v A Child’ rather than ‘Re: A Child’, enabling pilot reporters to know which Local Authority is involved in the case.
Further funding has been provided by the MOJ for the funding of an independent evaluation of the pilot which will be undertaken by the National Centre for Social Research. The evaluation is due to be reported to the TIG in winter 2023/2024, where final recommendations will be formulated. It is also anticipated that the pilot will be further extended to cover hearings before magistrates in the autumn.
Full Bulletin and Updated Transparency Order: https://www.judiciary.uk/guidance-and-resources/family-reporting-pilot-extended-to-private-law/
Written by Pupil Barristers Ellen Boyes and Annabelle Coakley
