Duration of Without Notice Orders

In Re W (Minors) [2016] EWHC 2226 (Fam), Mostyn J provides guidance in respect of the duration of without notice orders.

This case concerned three sets of proceedings by the parties following the breakdown of their relationship: High Court proceedings issued by the father; an application by the mother for a non-molestation order in the Family Court at Bow; and the father’s application for Child Arrangement Orders in the Central Family Court.

In a judgment concluding the High Court proceedings, Mostyn J referred to the without notice non-molestation order obtained by the mother on 19 July 2016. The order expires on 19 July 2017 and makes provision for the order to be “considered at a further hearing on a date to be fixed by the court officer on request by the respondent” (para 9).

Mostyn J referred to the President’s Practice Guidance of 13 October 2014 and criticised the order as a “clear violation … in that the period for which the order endures – one year – is greatly in excess of the normal period specified … of 14 days and … does not provide on its face for a specified return date”. Mostyn J opined that the violation was “perhaps unsurprising … 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”. Mostyn J referred to the editorial note as “intemperate, disrespectful and legally wrong” and that it “in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate” (para 10).

Without notice orders of this nature must be very much the exception rather than the rule “because it offends a fundamental principle of natural justice that judicial decisions should be made after hearing both sides”. This principle “can only be departed from in circumstances of grave risk of harm and … should be mediated by the earliest possible inter partes hearing” (para 11).

The Guidance is derived from Court of Appeal and High Court authorities and “it is for the higher courts to give guidance as to the interpretation of statutes and … 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” (para 11). Mostyn J added that “the lower courts must faithfully adhere to the guidance until and unless it is amended by the President” (para 15).

The Guidance makes it clear that the duration of a without notice order should not normally exceed 14 days, that provision must be made for a specific return date, and that “the return date should normally coincide with the date of the expiry of the order” (para 12).

Mostyn J directed that the non-molestation proceedings in the Family Court at Bow should be moved to be heard alongside the Central Family Court application and that there should be the earliest possible return date for the non-molestation injunction to be considered.