The Use and Abuse Of Family Court Ex Parte Injunctions
Family Court ex parte injunctions play a crucial role in protecting people, particularly in cases involving domestic violence or disputes concerning child arrangements. They are designed to offer swift relief when immediate action is needed. However, they also come with the potential for abuse, which can devastate the life of the Respondent and their family.
What is an ex parte injunction?
An injunction is a judicial order restraining a person from beginning or continuing an action threatening or invading the legal right of another or compelling a person to carry out a certain act. In most cases, the Court will hold a hearing before granting a family law injunction. Prior to the hearing, the Respondent will have received a copy of the injunction application and had time to prepare their response.
However, sometimes, the safety and wellbeing of the applicant and/or their children require the order to be made ex parte (without notifying the Respondent). Alternatively, other factors may require the application to be made urgently. If an ex parte injunction is granted, you, as the Respondent, should be notified that you must attend a full Court hearing within seven days.
Mr Justice Mostyn in Re W (Minors) [2016] EWHC 2226 (Fam) confirmed that ex parte applications should only be granted in exceptional circumstances.
“It has been stated time and again that ex parte relief of this nature must be very much the exception rather than the rule because it offends a fundamental principle of natural justice which is that judicial decisions should be made after having heard both sides.”
Ex-parte applications may be used in the following circumstances (note that this list is not exhaustive):
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Freezing Orders – used to prevent one spouse from dealing with and/or disposing of assets that may become part of the financial settlement.
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Non-Molestation Orders – used in domestic abuse cases to prevent a person from molesting or harassing another party.
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Ouster or Occupation Orders – to order one party out of the family home.
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Prohibited Steps Order – to prevent one parent from doing something set out in the Order.
Ex parte injunctions serve a crucial purpose in family law by providing emergency relief when time is of the essence. They can be granted based on the Applicant's written statement and arguments presented to the Court, as well as any supporting evidence. However, their very nature makes them susceptible to misuse and raises concerns about fairness and due process.
Can ex parte injunctions be abused?
Unfortunately, yes. One of the primary concerns regarding ex parte injunctions is the potential for false allegations to be used as a tool for gaining an unfair advantage in a family dispute or punishing the other party. In addition, false or exaggerated claims made in the heat of the moment can irreparably damage the relationship between the parties involved, especially when accusations are made in the context of child arrangement battles.
Ex parte injunctions can be used as a form of retaliation, weaponising the legal system against a former partner or spouse in a bid to gain an upper hand in legal proceedings and the relationship.
What safeguards are in place to protect against abuse?
Below are some examples of the high bar that must be reached for an Applicant to be granted one of the below injunctions ex parte.
Freezing Orders
Freezing Orders are exceptionally difficult to obtain. The Claimant must have a strong, arguable case as well as an underlying legal or equitable right. Existence of the assets must be proven alongside demonstration of a real risk that assets will be dissipated and will therefore not be available at the enforcement stage.
Non-Molestation Orders
Although the Courts must focus on the health (physical or mental), safety and well-being of the Applicant and of any relevant child and not explicitly the Respondent's behaviour, before granting a Non-Molestation Order, it must consider:
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Evidence of molestation.
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Whether, on the balance of probabilities, an order is required to control the Respondent’s behaviour that is the subject of the complaint.
Occupation Orders
Like Freezing Orders, the draconian nature of an Occupation Order means the Court will only grant it under serious circumstances. When considering an application, the Court will examine the housing needs and finances of the parties and their behaviour. It will also bear in mind the safety and wellbeing of any children and the mental and physical health of the Applicant.
In addition, the Court must apply the ‘balance of harm test,’ which balances the harm the Applicant or child would suffer if the order were not granted.
Wrapping up
Granting a family injunction ex parte goes against the principles of natural justice, namely that the Respondent must be given the right to provide their side of the story before a Court Order is granted. Despite the safeguards around granting such injunctions, abuses can still occur, sometimes leading to serious injustices.
If you have been made subject without notice to an injunction, a Court hearing will normally be scheduled within seven days of the order being granted. It is crucial that you obtain advice from an experienced Family Law Solicitor who can review the Applicant’s court statement and draft a robust response that refutes the allegations made against you.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with all family law matters. To make an appointment, please call us on 01932 840 111.