Neutral Citation Number:  EWHC 1277 (Fam)
Case No: FD11P00938
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
MRS JUSTICE THEIS DBE
‐ and ‐
Mr Jeremy Rosenblatt (instructed by Passmores) for the Applicant
Hearing dates: 18th April & 5th May 2011
This judgment is being handed down in private on 23rd May 2011. It consists of 8 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mrs Justice Theis DBE
"I was talking to my son´s father [from a previous relationship] about 9 weeks ago and the Defendant Father heard the conversation as I was asking for money for my son. The Defendant Father said to me if I asked him for money, he would take Jack away from me. At that stage he was exercising some contact to Jack but that contact has now broken down and he has not seen him for 5 weeks."
"I have been rung up abut this case and I know there have been problems, I believe, with public funding. My Lady, there are terrible problems at the moment and I can only relate my experience with solicitors; for non‐Hague abductions a lot of solicitors are not getting the confirmation of funding through even with the devolving powers when they are entitled to it."
A little later he said
"I have had a discussion twice last week about this case with my solicitor who, by Thursday, was becoming very anxious because they had had mother on the telephone persistently. I then came in to chambers this morning not expecting to come into court to have this. So all I know is that there seemed to be last week extreme anxiety because I was rung up twice because the mother had telephoned the office twice."
"... Last week, as I said to you, twice I was called because she was worried that the father was going to take the child to Heathrow."
I asked what this information was based on and Mr Rosenblatt stated:
"I gather it was information that she was receiving from the father and that is why the solicitor who, to be fair I think is cautious not to make unnecessary applications, by then was becoming very anxious. He felt we could only represent her obviously if she was going to comply with the legal aid requirements. That is what I was told.
I asked whether it was his understanding that there had been conversations reported from the mother that the father was going to take the child to Heathrow, Mr Rosenblatt stated:
"That was my definite understanding, yes. As I say, I was telephoned twice last week."
I have clarified today that there is to be no further affidavit on this mornings ex parte which Theis J understandably sought to have the passport order. ???
The threats referred to by myself that I was instructed upon I am now told related to a different case!! As there was no recent threats the passport order should not stand as it is my duty as I do so, to relate these further instructions now straightaway.
I have taken out any reference to a passport order: if Mother wishes for such relief I suggest she raises it on the return date.
I am about to advise the Tipstaff NOT to draw up a passport order.
14.4.11 Telephone call received by Counsel at about 3.00 pm from Catherine Roblin, Solicitor with conduct of case, mentioning a child abduction matter and seeing the Mother next day as there had been threats of a Father going to Heathrow twice that week for possible hearing next day, Friday 15th April at 2.00pm for urgent relief.
18.4.11 Counsel finds original papers in his pigeon hole that morning having received no telephone call or scanned papers from Solicitors before. Had heard nothing on Friday before and assumed case was not proceeding. Counsel reads Affidavit, prepares originating summons and proposed order, delivers it by hand to Judge´s Clerk and attend court.
Without notice applications
General comment on without notice applications
- There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.
- Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:
- a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent´s case is, or is likely to be,
- where available and appropriate, independent evidence,
- a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and
- in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted
- As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.
- Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders)  1 WLR 211,  3 FCR 706, W v H (ex parte injunctions)  3 FCR 481 (by analogy X Council v B (Emergency Protection Orders)  1 FLR 341 and Re X (Emergency Protection Orders)  EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris  2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at  2 FLR 354).
- Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.
- As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.
- I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.
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Family law information for parents whose children are resident in England and Wales
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