Ex parte applications should only be used in exceptional situations, say Suzanne Stephenson and Stephen Gerlis

On Friday afternoons in county courts up and down the land, there are usually a string of ex parte or 'without notice' applications. Many will be made by litigants in person, but vast numbers will be made by legally represented applicants. Trainee solicitors and 'baby' barristers will be urging judges to make orders - 'It will soon be the weekend, judge. The safer course is to make an order'. But are such applications really appropriate?

Section 45 of the Family Law Act 1996, as amended by the Domestic Violence, Crime and Victims Act 2004, says that the court may make non-molestation and occupation injunctions without notice 'where it considers it just and convenient to do so'. There is a list of matters the court should consider at section 45(2), including any risk of significant harm, and whether it is likely the applicant will be deterred from pursuing the application if the order is not made immediately, and whether there is a reason to believe that the respondent is aware of the proceedings but is deliberately evading service.

Section 42A now makes it a criminal offence to breach a non- molestation order made under the act as long as the respondent was aware of the order.

As far as children cases are concerned, section 11(3) of the Children Act 1989 says: 'Where a court has power to make a section 8 order, it may do so at any time during the course of the proceedings in question, even though it is not in a position to dispose finally of those proceedings.' Rule 4.4(4) of the Family Proceedings Rules 1991 sets out the procedure for applying without notice.

Most of the authorities on without-notice family applications pre-date the implementation of the 2004 act and the footnotes to the Family Court Practice 2007 (page 1035) say that: 'It is recognised that victims of domestic violence often need immediate protection, which can be effectively granted only on an ex parte basis. As the respondent has no legal right to inflict or threaten violence, it follows that his legal rights are not being infringed by a non-molestation order.'

However, this is not what section 45 says, and does not reflect the position that arrest for an alleged breach will bring the respondent into the criminal process. It may be that the set of allegations giving rise to the application are denied by the respondent. If a flimsy application is made without notice on a Friday afternoon, the test is not 'should an order be made to instruct the respondent not to do something he should not do anyway' but, for example, is there a risk of 'significant harm' or will the applicant be deterred from making the application. Section 45 does not refer simply to harm (defined at section 63), but 'significant' harm.

There is a line of cases such as G v G (Ouster: ex parte application) [1990] 1 FLR 395 which show the courts' reluctance to make orders which result in someone being ordered to leave a property before being heard.

If an interim Children Act order is to be made in proceedings the aim should normally be to maintain the status quo (Hampshire County Council v S [1993] 1 FLR 559, B v B (Interim Contact with Grandparents) [1993] Fam Law 393. However, the authorities also show that, without notice, section 8 orders should not be granted readily. Mr Justice Munby set out guidelines in Re S (Ex Parte Orders) [2001] 1 FLR 308. In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 the indication was that it should normally be possible to give some kind of notice, albeit informal, thus reserving without-notice applications for cases of genuine emergency or other great urgency.

Recently, Mr Justice Munby made some pointed comments on the use and misuse of without-notice applications. Although the case of Lawer v Restormel BC [2007] EWHC 2299 (Admin) was a case on homelessness, it raised more general issues.

Counsel had made a without-notice application over the telephone on behalf of a homeless woman seeking an injunction against the local authority. It transpired that the judge had been given inaccurate information, although Mr Justice Munby was at pains to emphasise that counsel was not consciously misleading the judge.

He had scathing words to say about those who abuse the system: 'Too often in my experience ex parte applications are made which are not urgent or which, more frequently, have become urgent only because of unnecessary, inappropriate and usually unexplained delay. The present case is a good example... this case exemplifies, in too many respects for comfort, prevailing professional approaches, both in the Family Division and in the Administrative Court, to a jurisdiction which, to repeat, is only to be resorted to in exceptional circumstances.'

Returning to those Friday afternoon applications, it is clear that Mr Justice Munby has sounded a warning bell to lawyers and judges alike.

There are many cases where the courts should make Family Law Act injunctions and section 8 orders without notice. However, there are many without-notice applications where the allegations are not particularly serious, or the applicant or their lawyer sees the application as a way to gain the upper hand.

Thought has to be given to the consequences of making a without-notice non-molestation order, where the facts set out by the applicant are not particularly substantial and the parties have a history of litigating against each other. Once the order has been served, a respondent could find themselves arrested and charged with a criminal offence before the allegations giving rise to the original application have been tried. Courts must have regard to the section 45(2) criteria, as should the applicants and their advisers.

It can sometimes happen that the parties to a dispute about a child are simultaneously making without-notice applications in two different courts, giving rise to the ridiculous situation of two contrary orders arising out of the same dispute, all because each court has only heard one side of the story.

Where it is possible for a family application to be brought on notice then that is the proper course. An application can always be made to abridge time for service. Without-notice applications should be reserved for exceptional situations. The more this privilege is abused, the more likely the courts are going to be sceptical about genuine applications.

District judges Stephenson and Gerlis sit at Barnet County Court