High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neutral Citation no. [2001] NIQB 23

Ref:    

HIGC3456

 

 

 

Judgment: approved by the Court for handing down

Delivered:

27.06.2001

(subject to editorial corrections)

 

 

   

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   QUEEN'S BENCH DIVISION (CROWN SIDE)   ------------   IN RE SLOAN   ------------

 

HIGGINS J

 

            This is an application for judicial review of orders made by Mr Fyffe RM sitting at Downpatrick, Co Down, on 19 June 2000.  The orders were made ex parte under Article 23 of the Family Homes and Domestic Violence (NI) Order 1998 (hereafter referred to as the Domestic Violence Order).  The applicants were Anne Sloan and Rosemary Cunningham and the respondent Erica Sloan, their niece.  Erica Sloan is the applicant in this application for judicial review.  The main issue between the parties has now been resolved.  However the application also gave rise to a point of procedure about which, I was informed, there are variations in practices throughout the magistracy and it would be helpful if this court were to offer some guidance.  Accordingly leave to apply for judicial review was granted.

            I shall set out a brief history only relating to this application.  There has been disharmony between Erica Sloan and her maternal aunts, Anne Sloan and Rosemary Cunningham, for some time.  On 19 June 2000 Anne Sloan and Rosemary Cunningham applied ex parte to Mr Fyffe RM for Non-Molestation Orders under Article 23 of the Family Homes and Domestic Violence (NI) Order 1998.  These orders were served on the applicant by the RUC.  The applicant instructed her solicitors to apply to discharge the Non-Molestation Orders dated 20 June 2000.  Applications to discharge the Non-Molestation Orders, dated 20 July 2000, were filed with the court.  A summons to attend the court on 21 August 2000 was issued to both Anne Sloan and Rosemary Cunningham at which the applications to discharge would be heard.  Both summonses were sent to 8 Fountain Court, Downpatrick, the address given for both Anne Sloan and Rosemary Cunningham on the original Non-Molestation Orders dated 19 June 2000.  At the same time Erica Sloan applied ex parte for Non-Molestation Orders against her aunts.  These ex parte applications were refused on the ground that they should be heard inter partes.  It was anticipated that those applications, together with the application to discharge, would be heard on 21 August 2000.  It transpired that the summonses and applications which were sent to 8 Fountain Street, Downpatrick were returned 'Not Served' as the aunts no longer lived at that address.  Thus the applicant was left with no remedy on her application to discharge the ex parte Non-Molestation Orders.  The reason for this was that neither ex parte order specified, made on 19 June 2000, a specified Return Date when the ex parte orders could be contested at an inter partes hearing.  Accordingly the applicant sought judicial review of the ex parte orders and that they be quashed.  Those issues have now been resolved.  However the practice adopted by the RM in this case, of not specifying a Return Date, is followed by some RMs whereas others do specify a Return Date.  It is alleged that an ex parte order without a Return Date could potentially last forever without the respondent to the order having an opportunity to contest the matter.  A Non-Molestation Order is a serious interference with a person's liberty and could have grave consequences due to the power of arrest to which it gives rise.  Thus guidance was sought as to whether or not a Non-Molestation Order obtained ex parte should specify a Return Date.

            The Family Homes and Domestic Violence (NI) Order 1998 has radically altered the law relating to the protection of spouses and others from the inequities of domestic violence.  Several new protective orders were introduced, one of which is the Non-Molestation Order, provision for which is made in Article 20 of the Order.  This states:

"     20.-(1)   In this Order a 'non-molestation order' means an order containing either or both of the following provisions –

 

(a)        provision prohibiting a person ('the respondent') from molesting another person who is associated with the respondent;

 

(b)       provision prohibiting the respondent from molesting a relevant child.

 

     (2)   The court may make a non-molestation order –

 

(a)        if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

 

(b)        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 or any relevant child even though no such application has been made.

 

     (3)   In paragraph (2) 'family proceedings' includes proceedings in which the court has made an emergency protection order under Article 63 of the Children (Northern Ireland) Order 1995 which includes an exclusion requirement (as defined in Article 63A(3) of that Order).

 

     (4)   Where an agreement to marry is terminated, no application under paragraph (2)(a) may be made by virtue of Article 3(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.

 

     (5)   In deciding whether to exercise its powers under this Article and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety an well-being –

 

(a)        of the applicant or, in a case falling within paragraph (2)(b), the person for whose benefit the order would be made; and

 

(b)       of any relevant child.

 

     (6)   A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.

 

     (7)   A non-molestation order may be made for a specified period or until further order.

 

     (8)   A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed."

 

            The meaning to be attributed to "associated person" is provided for in Article 3(3) which identifies various relationships.  Thus for the purposes of the Order a person is associated with another person, inter alia, if  -

            (a)        they are or have been married to each other;

            (c)        they live or have lived in the same household etc;

            (d)       they are relatives.

Thus a person may apply for a Non-Molestation Order against a relative, prohibiting the relative from molesting the applicant.  The application may be made in other family proceedings or may be free-standing.  In deciding whether to grant an order the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the applicant.  The order is not confined to prohibiting particular acts of molestation but may be expressed so as to prohibit molestation in general.  Therefore it has the potential to be far reaching.  An order made inter partes may be made for a specified period or until further order – see paragraph (7) supra.        

By virtue of Article 23 a Non-Molestation Order (and an occupation order) may be ex parte.  Article 23 states:

"     23.-(1)   The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

 

     (2)   In determining whether to exercise its powers under paragraph (1), the court shall have regard to all the circumstances including –

 

(a)        any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately,

 

(b)       whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately, and

 

(c)        whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service an that the applicant or a relevant child will be seriously prejudiced by the delay involved –

 

(i)        where the court is a court of summary jurisdiction, in effecting service of proceedings, or

 

(ii)       in any other case, in effecting substituted service.

 

     (3)   If the court makes an order by virtue of paragraph (1), it shall afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.

 

     (4)   If, at a full hearing, the court makes an occupation order ('the full order'), then for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant Article shall apply as if the period for which the full order will have effect began on the date on which the initial order first had effect.

 

     (5)   In this Article –

 

'full hearing' means  a hearing of which notice has been given to all the parties in accordance with rules of court;

 

'initial order' means an occupation order made by virtue of paragraph (1); and

 

'relevant Article' means Article 11(10), 13(10), 14(10), 15(6) or 16(6)."

 

            Before making an ex parte order the court must consider that it is just and convenient to do so, in the absence of notice to the respondent which otherwise would be given.  In determining whether or not to exercise its powers the court must have regard to all the circumstances, including the risk of significant harm to the applicant if the order is not made immediately, as well as the other matters mentioned in paragraph 2.  It is implicit in Article 23 that the circumstances in which the court might exercise its discretion and make an Non-Molestation Order ex parte, are serious and require an urgent and immediate response from the court.

            Where a court makes an ex parte order it must afford the respondent to the order, an opportunity to make representations about the order at a full hearing.  The order does not specify a time within which the respondent should be given the opportunity to make representations.  It recites, merely, as soon as is just and convenient.  However a "full hearing" is defined as a hearing of which notice has been given to all the parties in accordance with the Rules.

            The orders made by the Resident Magistrate were in the following terms:

By the Resident Magistrate sitting at Downpatrick on 19 day of June 2000,

 

Upon the hearing of an ex-parte application, pursuant to Article 23 of the Family Homes and Domestic Violence (NI) Order 1998,

 

IT IS ORDERED THAT:

 

The respondent Erica Sloan is forbidden to use or threaten violence against the applicant Anne Sloan [Rosemary Cunningham] and must not instruct, encourage or in any way suggest that any other person should do so,

 

The respondent Erica Sloan is forbidden to intimidate, harass or pester the applicant Anne Sloan [Rosemary Cunningham] and must not instruct, encourage or in any way suggest that any other person should do so,

 

The Above Order shall take effect forthwith and shall last until further order.

 

Ordered by   J C Fyffe

                        Resident Magistrate

 

On 19 day of June 2000

SERVICE BY RUC

 

IMPORTANT NOTICE TO THE RESPONDENT:

 

This Order gives you instructions, which you must follow.  You should read it all carefully.  If you do not understand anything in the Order you should go to a solicitor, Advice Centre or Citizen's Advice Bureau.  You have a right to ask the court to change or cancel this Order but you must obey it unless the court does change or cancel it.

 

You must obey the instructions contained in this Order.  If you do not, you may be guilty of an offence, and you may be sent to prison and/or fined.

 

            The Rules applicable to applications under the Domestic Violence Order are the Magistrates' Court (Domestic Proceedings) Rules (Northern Ireland) 1996 as amended by the Magistrates' Courts (Domestic Proceedings) (Amendment) Rules (Northern Ireland) 1999 (hereafter referred to as the Domestic Proceedings Amendment Rules 1999).

            The Schedule to the Domestic Proceedings Amendment Rules contains various forms for use in applications and orders under the Domestic Violence Order.  Form 7 is the appropriate form for a Non-Molestation Order.  There is no form for ex parte orders and Form 7 has been adapted by the insertion of the heading "Non-Molestation Order Ex Parte".  The sentence "The above order shall take effect forthwith and shall last until further order" does not appear in the specimen form.  The last two paragraphs containing advice and instructions do appear.  They are appropriate for both orders on notice and orders ex parte.

            Under Article 20(2) a Non-Molestation Order made at a full hearing inter partes, may be made for a specified period or until further order.  It is clear that the RM when making the present orders ex parte, decided that no period should be specified, but that the order should remain in force until further order.

            The notice which a respondent is entitled to in an application on notice is not less than 2 days prior to the date fixed for hearing – see Rule 10(3) of the Domestic Proceedings Amendment Rules.  The court has power to abridge that period – Rule 10(4).

            Article 23(3) provides that if the court makes an order ex parte, it shall afford the respondent an opportunity to make representations at a full hearing.  It does not specify when that hearing should be other than that it should be "as soon as just and convenient".  Given the nature of a Non-Molestation Order and its effect, as shown above, a full hearing must be convened at the earliest opportunity.  What was intended by the words "as soon as just and convenient"?  In practice there seems to be two interpretations –

1. .         that the parties (in conjunction with the court office) agree a date for a full hearing; or
2. .         the court fixes a Return Date and appends that to the order.

It seems to me, given the nature and effect of a Non-Molestation Order, that there is a strong argument in favour of the second interpretation.  In relation to the first interpretation difficulties may arise over agreement about the date or, as happened in this case, of establishing contact with the appropriate person.   The words "afford an opportunity to make representations" imply more than mere '"liberty to apply" at a later date.

 

              Rule 10A of  the Domestic Proceedings Amendment Rules provides:

"     10A.-(1)   An application for an occupation order or a non-molestation order under the Order of 1998 may, with the leave of the court, be made ex parte and in which case –

 

(a)        Article 77(2) of the Magistrates' Courts (Northern Ireland) Order 1981 (civil proceedings to be on complaint) and rule 10 shall not apply; and

 

(b)        the evidence in support of the application shall state the reasons why the application is made ex parte.

 

     (2)   Where the leave of the court is granted, the application may be made orally and the applicant shall, within 48 hours of the making of the application or as directed by the court, -

 

(a)        file a written copy of the application in Form F1, together with any supporting statement with the clerk of petty sessions; and

 

(b)        serve a copy of the application in Form F1, together with any supporting statement on the respondent.

 

     (3)   Service of any document referred to in paragraph (2)(b) may be effected –

 

 (a)      if the respondent is not know to be acting by solicitor –

 

(i)        by delivering it to him personally, or

 

(ii)      by delivering it at, or by sending it by first class post, to his residence or his last known residence, or

 

(b)       if the respondent is known to be acting by solicitor -

 

(i)        by delivering the document at, or sending it by first class post to the solicitor's address for service,

 

(ii)       where the solicitor's address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents on every business day to that document exchange, or

 

(iii)      by sending a legible copy of the document by facsimile transmission to the solicitor's office.

 

     (4)   Upon complying with paragraph (2)(b) the applicant shall file a statement in Form F4 and that statement shall indicate –

 

(a)        the manner, date, time and place of service, or

 

(b)        where service was effected by post, the date, time and place of posting.

 

     (5)   Where the court refused to make an order on an ex parte application it may direct that the application be made inter partes."

 

            Under Rule 10A(1) an application for a Non-Molestation Order ex parte, requires the leave of the court.  Thus the first step is to apply for leave.  There is no provision in the Rules as to how the application for leave is made.  It could be either orally or in writing.  Where the application is made ex parte the normal Rules relating to the issue of a summons following a complaint under Article 77(2) of the Magistrates' Court (NI) Order 1981 and Rule 10 of the Domestic Proceedings Amendment Rules do not apply.  Article 10 provides that an application by way of  complaint to a Justice of the Peace or a Clerk of Petty Sessions shall be made in writing in Form 1.  A copy of any summons issued in consequence of such an application shall be served on the respondent not less than 2 days prior to the date fixed for hearing.  The summons is issued in Form 3 and commands the appearance of the respondent at a certain time and date on the hearing of the application.  The time and date of the hearing would be fixed by the Justice of the Peace or the Clerk of Petty Sessions who issues the summons.

            Under Rule 10A(2) where leave to apply for a Non-Molestation Order is granted the application for that order may be made orally.  In any event the evidence in support of the application shall state the reasons why the application is made ex parte.  Within 48 hours of making the application or as directed by the court the applicant must file a written copy of the application in Form 1 together with any supporting statement with the Clerk of Petty Sessions.  In addition, either within 48 hours or as directed by the court, the applicant must serve a copy of the application in Form 1 on the respondent together with any supporting statement.  Where the court makes a Non-Molestation Order ex parte the Clerk of Petty Sessions shall cause a copy of the order to be served forthwith on the respondent personally – see Rule 12A.  Thus where a Non-Molestation Order is made ex parte the respondent is served with a copy of the order, a copy of the application and a copy of any supporting statement.  No provision is made for service of any summons on the respondent where the application proceeds ex parte.  Once the application for a Non-Molestation Order has been granted ex parte, the prohibition under Rule 10A(1)(a), on the application of Article 77(2) of the Magistrates' Courts (Northern Ireland) Order 1981 and Rule 10 of the Domestic Proceedings Amendment Rules, no longer applies.  Where a Non-Molestation Order is made a respondent may apply to discharge or vary it.  The respondent to an order is notified of this right when served with the order.  Provision is made for the procedure to be followed in applications to discharge or vary – see Rule 13.  No provision is made in the Rules for the respondent to be given an opportunity to make representations at a full hearing.  Article 23(3) requires the court to afford the respondent an opportunity to make representations.  Article 23(3) is mandatory in its requirement that the court give the respondent the opportunity to make representations.  It is not simply the opportunity to make representations but to do so at a full hearing the timing of which must be just and convenient.  To inform the respondent that he has the right to apply to vary or discharge the order is insufficient to comply with the mandatory words of Article 23(3).  The burden of doing so falls on the court.  When the order has been made ex parte the court is in possession of an application which requires to be served on the respondent together with a copy of the order.  The court has power to issue a summons to the respondent, on foot of the application, to attend for a full hearing.  A summons in the terms of Form 3 with suitable modifications (as are made to Form 7 for orders obtained ex parte) could be issued by the Clerk of Petty Sessions on direction of the Magistrate following the grant of a Non-Molestation Order ex parte.

            To describe an order made under Article 23 as  a "Non-Molestation Order ex parte" or an "ex parte Non-Molestation Order" is somewhat misleading.  The order made under Article 23 is a full Non-Molestation Order under Article 20, but made without notice to the respondent.  The fact that it is an unrestricted Non-Molestation Order underlines the necessity to comply with the statutory duty of giving the respondent the opportunity to make representations at a full hearing.  The court is under a duty to do so and to devise a means to fulfil that duty.  While it is an                               order it is one made without notice.  There is the potential for such an order to work an injustice on the respondent.  Hence the necessity for an inter partes or full hearing after which a further order would be made or no order made at all.  Support for this purposive approach may be found in Article 23(4) relating to occupation orders where the making of "a full order" at "a full hearing" is provided for.

            Alternatively the court could specify a Return Date for a full hearing and recite that date in the order and limit the duration of the Non-Molestation Order made without notice to "until a full hearing" on a certain date.  This would be consistent with Article 23(3).  It seems to be excessive to require a respondent, against whom an order has been made without notice, to make formal application himself to discharge the order when Article 23(3) affords him that opportunity within one set of proceedings already constituted.  When interpreted in that purposive manner an order without notice under Article 23 is, in reality, an interim order.  An order made "until further order" as provided for in Article 20(7), would not be incorrect provided a Return Date is specified.  Therefore when making a Non-Molestation Order ex parte the RM should specify a Return Date or alternatively issue a summons, on foot of the application in Form F1, to the respondent to attend on a certain date.  In either case the date should be the earliest convenient date.  Various permutations could be used to convey the same effect.

            The European Convention on Human Rights was referred to and relied on.

            Article 6 of the European Convention on Human Rights provides that anyone is entitled to a fair and public hearing of the determination of his civil rights.  Applications for Non-Molestation Orders are civil proceedings.  Prima facie a fair trial requires the right to be present and the right to respond.  Prima facie hearings without notice offend the right to be present and to respond.  The purpose of permitting Non-Molestation Orders to be granted ex parte, is to provide a mechanism for hearing urgent and serious cases with the speed required, as well as to put in place protective measures designed to protect those at risk who may be vulnerable, including children.  Where, as here, the legislation requires and provides for an early inter partes hearing, the provision to enable applications to be filed and orders made without notice, is neither disproportionate nor unfair.  Accordingly Article 23 does not offend Article 6 of the European Convention provided the court fulfils its obligation to secure a full hearing as soon as is just and convenient.

            Article 8 of the European Convention preserves the right to respect for private and family life.  A Non-Molestation Order made without notice has the potential to transgress that right.  The purpose of a Non-Molestation order is essentially to protect the health, rights and freedom of others.  Where that is the case, as here, no breach of Article 8 arises.

            Where there is in place a mechanism for early review of a Non-Molestation Order made ex parte, which ex parte application can only be made in urgent and compelling circumstances, no breach of Article 6 and 8 arises.


 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND   QUEEN'S BENCH DIVISION (CROWN SIDE)   ------------   IN RE SLOAN   ------------       JUDGMENT       OF       HIGGINS J       ------------