England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCFMF 98/1253/2

(HIS HONOUR JUDGE KENNY )

Royal Courts of Justice

Strand, London WC2

Friday, 12 March 1999

B e f o r e:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE BROOKE

LORD JUSTICE CLARKE

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CHOUDHARY GULNAWAZ CHECHI

Applicant/Appellant

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(1) MOHAMMED BASHIER

(2) SAJJAD BASHIER

(3) RUKSHAR BASHIER

(4) AKHTAR BASHIER

(5) TARIQ BASHIER

(6) GHAFFAR BASHIER

(7) AMJAD BASHIER

Respondents

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(Handed Down Transcript of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR ANDREI SZERARD (Instructed by Dexter Montague & Partners, 105 Oxford Rd., Reading, Berkshire) appeared on behalf of the Appellant

MR JAMES GIBBONS (Instructed by Boyes Turner & Burrows, 10 Duke St., Reading, Berkshire) appeared on behalf of the First Respondent

MR EDWARD HESS (Instructed by Kidd Rapinet, Brunel House, 17-27 Station Rd., Reading, Berkshire) appeared on behalf of the Sixth Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS:

1. The appellant is the brother of the first respondent. The second to seventh respondents are six of the eight sons of the first respondent and lived with him at the relevant time. The brothers and their respective families were engaged in a bitter family quarrel, originating in a dispute over land in Pakistan from which both families came. The violent strife between the brothers continued in this country where both families reside. The appellant’s case was that, as a result of the land dispute, the first respondent and his sons subjected the appellant and his family to a campaign of systematic terrorisation and violence. Tyres were slashed and a property in Reading broken into, vandalised and set on fire. Two of the first respondent's sons were convicted of vandalising windows at the home of the appellant. The appellant alleged serious assaults on himself and an assault on his daughter. The assault on the appellant caused serious injuries requiring hospital admission. The second respondent, (one of the sons), has been charged with causing grievous bodily harm. The daughter obtained an injunction in civil proceedings. Threats to cause serious injury and to burn down his home have been made to the appellant. He alleged that the first respondent was party to and was master-minding these attacks by his sons.

2. The first respondent agreed that there was a continuing dispute over land in Pakistan, but he denied the allegations of a campaign of terrorisation and violence. He alleged that it was the appellant who subjected his family to terrorisation and violence and he, the first respondent, was badly injured in an incident in Pakistan on the 11th June 1997, as a result of which the appellant was charged with attempted murder. That information was not disclosed by the appellant in his first affidavit. After it was alleged in the first respondent’s affidavit, the incident was admitted but the offence was denied in the appellant’s second affidavit.

3. This deplorable tale of family warfare came first before a deputy District Judge ex parte on the 3rd July 1998 on applications brought under the provisions of Part IV of the Family Law Act 1996, (the 1996 Act), sections 33 and 42. He made orders for non-molestation against all the respondents, orders that they should not go within 100 yards of the appellant’s house and added a power of arrest to both orders to remain in force until the 13th July. It is not entirely clear from the orders made on the 13th July by His Honour Judge Holden the extent of those orders against each individual respondent. The appellant and the first respondent only were legally represented. It seems that he continued both sets of injunctions against all the respondents to remain in force until the 13th July 1999 in respect of three sons. He attached a power of arrest to remain in force against all the respondents until 13th November 1998. He adjourned the matter to the 26th August. The applications, the subject of this appeal, were heard by His Honour Judge Kenny on the 26th August 1998. Almost all the facts were in issue and the parties were ready to give evidence. Judge Kenny had read the papers and decided to deal with the matter on the basis that the appellant’s evidence was true, relying upon the written evidence before him. On that basis, he accepted that the case came within the jurisdiction of the 1996 Act. He also accepted that prima facie, if the jurisdiction was invoked, the appellant had made out a case against the first and sixth respondents and an order would be likely to be granted. Nonetheless, in the exercise of his discretion, he refused to hear oral evidence or to make an order against the first respondent. He discharged the order against the sixth respondent.

4. His conclusion was that:-

"the civil jurisdiction, the civil route for the present dispute between the parties, is appropriate, and not the Family Law Act."

He gave four reasons:-

A. He regarded the family relationship as incidental to the dispute between the parties.

B. The dispute was essentially civil and not family. The Family Law Act provided no relief for disputes over assault, trespass or damage to goods and he did not consider that the court should countenance proceedings in separate jurisdictions in respect of the same subject matter.

C. By the provisions of section 47(2) if the court makes an occupation or non-molestation order the court has little option but to attach a power of arrest to one or more provisions of the order. The judge considered that this draconian power, which was designed for the protection of vulnerable people such as women and children would be an unsuitable weapon in the hands of the appellant. It would give him "a very remarkable and ....unacceptable power over the respondents.." This was particularly so in the case of the first and sixth respondents who disputed the case, unlike the other sons who had not attended nor objected to the ex parte orders.

D. The advantage of civil proceedings would be that the appellant would have to pay the costs if he lost and he would therefore have to give responsible consideration to the question whether the proceedings were justified.

5. At the end of his judgment, the judge added that if any application was to be made by any of the other respondents to discharge the ex parte orders, he would grant it. He was prepared to consider whether injunctive relief should be granted if the appellant started civil proceedings. The appellant appealed to this Court.

6. Although the judge refused to make or continue non-molestation orders in August 1998, for reasons which have not been gone into, the appeal was not heard by this Court until February 1999. Since August 1998 there appears to have been no further violence. The incidents are stale and tension between the parties has eased. Counsel for the appellant, who was not present below, agreed that in the circumstances it was not now appropriate to seek non-molestation orders. He recognised that an application for an occupation order under section 33 ought not to be made since the appellant and the respondents did not occupy the same house nor was any claim made by any of the respondents in respect of the appellant’s home. He also accepted that, on the evidence before the judge, there was not sufficient to make a case for an order against the sixth respondent whose involvement was obviously peripheral if he was involved at all. We dismissed the appeal as against the sixth respondent.

7. We were however urged to hear the appeal against the judge’s refusal to entertain an application under the 1996 Act against the first respondent (the brother), partly at least, in the event of further incidents between the parties, to give guidance whether it would be appropriate to invoke this jurisdiction. We reserved our decision.

8. The ambit of this jurisdiction has not yet been tested, but this is not an appeal in which it would be appropriate to lay down general guidelines. There is now no need for the appellant to apply for relief and the failure of the appellant to obtain an order last August appears to have had a calming effect upon the wider family. But I consider that it would be helpful for the parties to the present unusual appeal to know whether the 1996 Act would be the most suitable jurisdiction to invoke if the appellant were to seek protection in the future.

9. The relevant sections of the Act come within Part IV which is headed Family Homes and Domestic Violence. The statutory framework of Part IV covers, inter alia, rights to occupy the matrimonial home, non-molestation orders and the power of arrest for breaches of orders. A court may make a non-molestation order if an application for the order has been made:-

"by a person who is associated with the respondent;" (section 42(2).

In section 62(3):-

"a person is associated with another person if...

(d) they are relatives;"

"Relative" in relation to a person means:-

(b) "the brother, sister, ..... niece or nephew (whether of the full blood or of the half blood or by affinity) of that person...(section 63 (1)).

The judge was therefore right to find that there was jurisdiction in the present case to make orders under the 1996 Act.

10. In section 42(2)(b) the court may make a non-molestation order:-

"if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings..."

Section 47(2) states that:-

"If-

(a) the court makes a relevant order; and

(b) it appears to the court that the respondent has used or threatened violence against the applicant ....,

it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such power of arrest."

The court is not obliged to make a non-molestation order, but if it does do so, it appears clear from the wording of Section 47(2) that it will, in all but exceptional circumstances, be obliged to include a power of arrest in the order.

11. In my judgment the judge’s first and fourth reasons for refusing to make an order are not sustainable.

Reason A. Although the dispute between the parties is in origin about land, it is patently over-laid and magnified by the family relationship, which has fuelled and kept alive the original disagreement. The depth of the dissension and the violent reaction of both sides must owe a great deal to family ill-feeling. The judge’s conclusion that the family relationship was incidental flew in the face of the evidence of the serious and violent escalation in 1998 of the family involvement in the land dispute. The report of the Law Commission (Law Com. No 207) on Family Law Domestic Violence and Occupation of the Family Home, set out in Part III their research and conclusions on the need for a broader approach to providing protection by way of non-molestation orders within the family context. At para 3.16:-

"...in the context of family proceedings it has come to be recognised that violence and molestation within family relationships need to be treated as a special case."

At para 17:-

"The need to extend the scope of injunctions in family proceedings beyond the scope of the law of tort has been explained by reference to the special nature of family relationships. When problems arise in close family relationships, the strength of emotions involved can cause unique reactions which may at times be irrational or obsessive. Whilst these reactions may most commonly arise between spouses and cohabitants, they can also occur in many other close relationships which give rise to similar stresses and strains and in which the people concerned will often continue to be involved with one another. The object of the law should be to provide a framework to enable people in this situation to continue their relationship in a civilised fashion."

12. The conclusion of the Law Commission was to favour the third choice suggested by them in their consultation exercise, that is to say, to widen the range of applicants to include anyone who is associated with the respondent by virtue of a family relationship or something closely akin to such a relationship. That proposal was enacted in the 1996 Act in sections 42(2), 62(3) and 63(1)(supra). Although in the present case the brothers and their families do not live together, it is clear that they continued to be deeply involved in the family dispute, at least during last year. It follows that the dispute between the brothers and the nephews is not only technically but genuinely within the ambit of Part IV of the 1996 Act, and if that jurisdiction is not to be exercised, it must be for reasons other than the first reason advanced by the judge.

13. Reason D. The financial implications of requiring civil rather than family proceedings would have had more weight if the appellant were in a financial position to pay costs or would be asked to give an undertaking as to damages. He is, I understand, in receipt of legal aid and probably would also therefore obtain legal aid if a civil action had been begun on the same facts. Equally he would be most unlikely to be asked for an undertaking in damages in view of his financial circumstances. Consequently there appears to be no extra financial constraint on the appellant in the conduct of civil proceedings. That reason is therefore of little weight on the present facts, although it might be an important consideration in some cases.

14. Reasons B and C do, however, raise matters of far greater substance and, if the judge was right in his conclusions, his decision was an eminently sensible one.

Reason B. We were told by Mr Szerard for the appellant, who did not appear below, that the appellant has not taken any steps to issue civil proceedings even though he was unsuccessful before the judge in the 1996 Act application. Counsel’s instructions were also that there was no intention evinced at the hearing to initiate civil litigation and there were no grounds upon which the judge could come to the contrary conclusion. Despite what we were told, it is clear from the judgment that the judge believed that the section 42 application was the first shot in a much more prolonged campaign which would include claims for damages for assault, trespass to land and damage to goods, relief which is not available under the 1996 Act and which would require the institution of separate civil proceedings. The detailed allegations set out in the appellant’s two statements which went far beyond what was necessary for a non-molestation order gave support to the judge’s view. I am far from satisfied that Counsel who appeared for Mr Chechi before the judge did not give the judge the impression that there might well be further civil litigation. This is an experienced judge and he clearly had the impression that there would be further proceedings. He said at page 4 of his judgment:-

"It does not seem right to me that the Court should countenance proceedings in separate jurisdictions in respect of the same subject matter. Where proceedings in one jurisdiction are more appropriate, that is where they should be brought."

Counsel who then represented the appellant did not rise at the end of the judgment to correct the judge’s impression that there would be further proceedings. If the judge was right, it would be a waste of court time and of legal aid to have two bites at the cherry. On the basis of his understanding of the position at the hearing, he was entitled to come to that conclusion, although it would have been much better if he had recited in his judgment what he had been told by Counsel as to his client’s intentions.

15. Reason C. This issue raises the question whether, if the relevant facts were proved, the judge was obliged to make an order under the 1996 Act or whether he erred in the exercise of his discretion in refusing to make an order. The only previous decision on the ambit of section 42 which was brought to our attention was C v C (Non-Molestation Order: Jurisdiction) [1998] 1 FLR 554. In that case the conduct of the former husband was criticised in the daily and Sunday press during proceedings after the divorce. The former husband obtained an ex parte order forbidding the former wife, inter alia, to procure publication of any account of personal or financial matters during the marriage. At the inter partes hearing Sir Stephen Brown, P. discharged the injunction and said at page 557:-

"It is significant, in my judgment, that section 42 is to be found in Part IV of the Family Law Act 1996 which is concerned with the general topic of domestic violence. In this particular case the marriage between these parties has been finally ended; they are quite separate individuals, and the material complained of is some alleged revelations by the former wife of what she regarded as her former husband’s misconduct."

It would appear that the President did not have drawn to his attention that the definition of a person who is associated with the respondent includes those who have been married to each other, (section 62(3)(a)) or those who are former cohabitants, (section 62(3)(b)). The Act is certainly available to protect a divorced spouse from harassment by the former husband or wife.

16. The conclusion of the President was that the material came nowhere near molestation as envisaged by section 42 of the Family Law Act. I respectfully agree with the President that the application under section 42 was a wholly unsuitable use of this procedure on the facts of that case. In cases where there may be alternative discretionary relief available, the court always has the power to grant or refuse the relief sought if it is not appropriate.

17. Section 42 provides a discretionary remedy. If the facts amounting to molestation by the respondent and the association between respondent and applicant are proved, the court MAY make a non-molestation order. In section 42(5):-

"in deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being

(a) of the applicant....."

Although the court has a wide discretion whether to grant or refuse the relief sought, it does not have the same flexibility whether to attach a power of arrest if the facts come within section 47(2)(b) where the respondent has used or threatened violence. This appears to be deliberate policy. The Law Commission received information, which is set out in the note to para 5.11 of the 1992 Report, about the extent to which the power of arrest was at that time being attached to injunctions granted under the Domestic Violence and Matrimonial Proceedings Act 1976. The proportion was under 30%. The Law Commission considered at para 5.13 that it was wrong in principle that women and children should have to wait to be injured before the law could offer adequate protection but that it would also be wrong to provide for an automatic power of arrest as there might be some cases in which it was inappropriate. The terms of the Law Commission’s recommendation have been incorporated into section 47(2).

18. The almost mandatory requirement to impose a power of arrest if a non-molestation order is made raises in this case, (as it may well do in many similar cases), a real problem which the judge, in my view, tackled with great common-sense and good judgment. Once the facts were found to justify a non-molestation order, since the appellant appears already to have suffered violence, the judge would almost certainly be satisfied that the appellant would not be adequately protected without such a power of arrest. Prima facie, on his reading of the written evidence, a power of arrest would therefore have to be attached to his order. He would not have the opportunity to exercise his discretion in the unusual circumstances of this case to refuse to attach it on the basis that he was equally satisfied that, if it were attached, its protection would be likely to be abused by the appellant. The prospect that the police would have to respond to a request by the appellant by arresting the first respondent without any investigation into the truth of the allegations the appellant was making is, to say the least, unattractive. The judge was entitled to consider that the power of arrest gave the appellant unacceptable power over the respondents in the special circumstances of this case, particularly in the light of the evidence given by the sixth respondent to the effect that he had only narrowly avoided arrest after an incident involving himself and the appellant at Reading railway station the previous week.. In the light of his inability to refuse to attach a power of arrest to his order, the only alternative would seem to be to refuse to grant the non-molestation order. This is the sort of case where cross-undertakings or cross-injunctions would be the most suitable relief, the breach of any of which would require a court hearing to determine the facts and whether either party was in contempt. His refusal to make an order under the 1996 Act would not prevent the judge from accepting cross-undertakings or, putting on his other county court hat, granting injunctions which did not include attaching a power of arrest, although this would involve an application and the cost of instituting separate proceedings. Equally the refusal to grant relief under the 1996 Act would not inhibit the intervention of the police if crimes were committed. We know from the history of this family dispute that the police have already been involved on some occasions and criminal proceedings have followed.

19. One plank of Mr Szerard´s argument was that the judge was wrong to make a decision not to grant relief without hearing the merits of the application. In my judgment the way in which a judge disposes of the cases before him is very much a matter within the discretion of the judge. Unless he erred in principle it is not for this Court to intervene. In the present case, the evidence upon which the appellant relied included not only hearsay but, in some parts, triple hearsay. For the purposes of deciding whether to grant relief, it is clear that the judge took the appellant’s case at its highest. He said at page 6 of the judgment:-

"Therefore, in the exercise of my discretion, even accepting as I do that Mr Chechi has made out a case for the making of an order against Mr Mohammed Bashier and the continuation of the order against Mr Ghaffar Bashier, and even though on the face of the papers if this were an appropriate jurisdiction to employ, it would be a case where such an order would be likely to be granted, in the exercise of my discretion I refuse to make the order."

In the light of those observations, there would be no point in the judge hearing the merits which could not have put the appellant in a stronger position than the judge was prepared to accept on the papers before him.

20. I underline that this is a most unusual case. The appellant himself was, at one stage, charged with attempted murder of the first respondent, although we understand that the charges may have been dropped. This appellant may, or may not, be more vulnerable than the first respondent. Nothing that I have said above is intended to diminish the importance and value of the speedy and simplified procedure provided by the 1996 Act, nor to suggest that those coming within the definition of ´a person associated´ ought not, in suitable cases, to obtain relief under the 1996 Act, whether in the county court or in a magistrates´ court. But the facts of this appeal are at a far remove from the general run of cases within the ambit of Part IV of the 1996 Act. For the reasons which I have set out above, the judge came to a most sensible decision and was justified in refusing the relief sought by the appellant.

21. There is however one further matter with which we have been asked to deal. At the end of his judgment the judge indicated that he would, on application, discharge the existing orders made against the other respondents, (the nephews). Mr Szerard informed us that the appellant’s solicitor was concerned whether, if violence flared up again, he would be able to rely upon the orders or whether they were to be treated as non-effective. I have no doubt that the orders remain effective and enforceable until 13th July 1999 or otherwise discharged. The police would have had to act on the power of arrest until the 13th November 1998 when it expired.

I would dismiss this appeal.

LORD JUSTICE BROOKE: I agree.

LORD JUSTICE CLARKE: I also agree.

Order: Appeal dismissed; no order as to costs save legal aid taxation.