Both parties appeared in person.
The husband sought permission to appeal against a case management order made by a district judge in proceedings under the Family Law Act 1996. The husband had been served with a non-molestation order which, inter alia, forbade him with immediate effect from entering the street in which the matrimonial home was situated. The order had been made at a hearing of which he had had no notice in proceedings of which he was unaware. The husband had duly vacated the property and, having done so, had attempted over a period of months to challenge the order through proper court procedures. However, on the basis of an insignificant procedural failing, the court had refused to hear his challenge. In the meantime, he had been arrested for an innocuous breach of the original order to which he had pleaded guilty without receiving legal advice and in consequence acquired a criminal record; if that were not enough, the effect of the original order had been to deprive him of contact with his children for fully five months.
Permission to appeal granted, appeal allowed and all previous orders set aside. The case highlighted important principles, applicable to all such cases: (i) The default position of a judge faced with a without notice application should always be "Why?", not "Why not?" Without notice orders could only be made in exceptional circumstances and with proper consideration for the rights of the absent party. (ii) The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order was made, it was the responsibility of the court (and, where applicable, the lawyers) to ensure that it was accurately drafted. That consideration applied with special force when a breach of the order would amount to a criminal offence. (iii) Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders; they were serious infringements of freedom of action and required specific evidence to justify them. (iv) The power to penalise non-compliance with case management orders should be used firmly but fairly, in a way that supported the overriding objective rather than defeating it; the court should apply the Family Procedure Rules 2010 (here specifically FPR r 4.6) with that aim. (v) The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant was entitled to legal representation as a result of unproven allegations, while the respondent was not; here the fact that one party had no legal advice at any stage was critical to the outcome. For the system to function, it was necessary for a robust view to be taken about compliance with directions: see In re W (A Child) (Adoption Order: Leave to Oppose) (Practice Note) [2014] 1 WLR 1993. There had been evolving guidance from the Court of Appeal in the parallel context of the Civil Procedure Rules in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 795 and perhaps the uncompromising approach taken by the district judge reflected the influence of those decisions. However, despite the manifest strains on the system, the fundamental obligation to deal with cases justly had to prevail; the Family Court's task was to apply the Family Procedure Rules 2010 to the facts. A fair application of rule 4.6 would enable the court to identify those cases where relief should be granted in the interests of justice, and those where it should not. On any view, this had been a case where every single one of the eight relevant considerations listed in rule 4.6 spoke in favour of granting relief. As the history showed, an unduly strict or narrow approach could cause delay, expense and injustice (paras 1, 56–59).
Family Law Act 1996, Pt 4