Families at war

District Judge Peter Jolly surveys recent decisions on family injunctionsPart IV of the Family Law Act 1996 covers more than the conventional nuclear family.

Relief can be sought against any 'associated person' as defined in section 62(3).

The category of associated persons includes 'relative', so practitioners also must refer to the meaning of that word contained in section 63 if looking at possible relief against, for example, a stepfather or niece.Together but apartG v F (Non-molestation Order: jurisdiction) [2000] All ER (D) 927 FD is a salutary reminder to courts seeking to apply too narrow and restrictive an approach to jurisdiction.

An application was made to the Family Proceedings Court for a non-molestation injunction under section 42(1)(a) of the Act, but the justices refused to hear the application on the grounds that the parties were not 'associated persons', as, despite the existence of a sexual relationship and the operation of a joint bank account, they were not living in the same household.Although the applicant had a child, it was not the respondent's child, so the only way that relief could be given was if the court held that these parties were cohabitants, or former cohabitants.

Unfortunately, the justices failed to allow the applicant to give any evidence to clarify her position, and therefore declined jurisdiction.

This approach was roundly criticised by the Family Division.

The applicant's evidence taken as a whole should have enabled the justices to find that the parties were former cohabitants.

Where domestic violence was concerned, a purposive construction should be given to the statute and jurisdiction should not be declined unless the facts of the case were plainly incapable of being brought within the statute.

Cohabitation can take many forms.

The moral seems to be that if the merits dictate, you will obtain your order without notice, so as to afford personal protection, leaving the respondent to challenge jurisdiction if he or she so wishes on the return hearing.Minor pointThe conundrum which faced the court in JH v RH (A Minor) (2001) The Times, 10 January CA was that of the truculent and violent teenage child.

The 17-year-old was made the subject of an occupation order and directed to vacate his parents' home and excluded from returning or attempting to do so.

Could the court attach a power of arrest to such an order? Was it wrong in law to attach a power of arrest to an order against a person not of full age? By virtue of section 1(1) of the Criminal Justice Act 1982 (as amended), the court could not visit upon the respondent a period of detention as punishment for contempt.

The Court of Appeal answered no, upholding the imposition of the power of arrest.

Section 47(2), which applies at the on notice hearing, was quite clear.

If the court makes a relevant order, and it appears to the court that the respondent has used or threatened violence against the applicant (or a relevant child), the court must attach a power of arrest to one or more (but not necessarily all) of the provisions of the order unless it is satisfied in all the circumstances of the case that the applicant (or child) will be adequately protected without.

So even though in one respect the order was a nonsense, the Court of Appeal neatly body-swerved by pointing out that the purpose of the order was not simply geared to potential contempt proceedings for breach, but to facilitate the removal of the respondent from the family home.

Long term animosityThe Court of Appeal also looked at section 47 in Re B-J (a child)(non-molestation order: power of arrest) [2000] All ER (D) 874.

This was the story of an unmarried couple who separated six years after the birth of their child.

There had been a history of conflict between the parents, which led the court below to make a parental responsibility order in favour of the father applicant, as well as an indefinite non-molestation order against the him in favour of the mother.

It attached a power of arrest to the non-molestation order for a period of two years.

The father appealed, contending that as the object of a part IV order was to give a breathing space to the parties, in the absence of exceptional circumstances, it should be for a specific period of time, and it was wrong to attach a power of arrest for a lesser duration than the order itself.

The appeal was dismissed.The Court of Appeal ruled that:l There is no need to consider whether cases were exceptional or not before determining the duration of the order.

l There are cases, of which this was one, where the continuing feelings of animosity between the former partners meant that a long-term or indefinite order was appropriate.l Critically, however, a power of arrest pursuant to section 47(2) might last for a shorter period than the order to which it was attached, (and the earlier decision of M v W (Non-molestation order: duration) [2000] 1 FLR 108 was overruled).So it is possible to make, say, a one-year order with a six-month power of arrest.PenaltiesThe Court of Appeal considered the process of enforcement.

In Hale v Tanner [2000] 3 FCR 62 CA comprehensive guidelines were set as to the approach to be adopted by the court in sentencing.

This case is compulsory reading for advisers and advocates, as well as judges.

Some of the more important aspects of this decision are: l Imprisonment is not the automatic consequence of a first breach;l If imprisonment is appropriate, the length of the term should be decided without reference to possible suspension; but, l Suspension could take place in a wider range of circumstances than in criminal cases;l The practical effect of concurrent proceedings may have to be taken into account; and,l The court should explain why it reached the sentencing option that was adopted in each case.

Hale v Tanner was applied in Shipton v Foulkes [2001] All ER (D) 319 (Feb) where, following a part IV non-molestation order, the respondent continued to live with the applicant and was subsequently convicted of assault on her and sentenced to six months' detention.Within 24 hours of his release he returned and subjected the applicant to a two-hour ordeal of imprisonment, assault and threats to kill.

The judge imposed a sentence of 12 months for contempt.

This was reduced on appeal.

The respondent was young, and although the breach was a serious one, it was the first breach of this order since it had actually been served on him.

The penalty should not take account of the criminal aspects of the respondent's actions, for which he may well receive a sentence in due course.

In Williams v Williams [2001] All ER (D) 135 (Feb), the chief problem was that the respondent husband had significant personality problems.

He breached the part IV order many times, once assaulting the wife with a Stanley knife.

In all he was remanded in custody for 12 weeks awaiting reports, which were not at that stage conclusive, before receiving a 16-month sentence.

On appeal it was held that the judge had misinterpreted her powers and that the remand provisions in section 48 of the Family Law Act 1986 were not subject to section 35 of the Mental Health Act 1983.

There was no end date under section 48, and there may be successive remands in custody for as long as it takes to obtain proper reports.

Finally, practitioners should note the president's practice direction of 16 March 2001 [2001] 2 All ER (D) 306 applying the Civil Procedure Rules 1998 (CPR) practice direction supplemental to the Rules of the Supreme Court, order 52 and County Court Rules, order 29 to all applications in family proceedings for committals, subject to certain modifications and the Family Proceedings Rules 1991.

So, where any contempt is alleged in existing proceedings, the committal application should be made in those proceedings, and the CPR costs provisions apply to all committals.See Notices, page 56District Judge Peter Jolly sits at Portsmouth Combined Court Centre