Service of Non-Molestation Orders during Covid-19

A recent article published by Rachel Cooper and Michael Horton from Coram Chambers makes it clear that change is required as to what constitutes acceptable alternative methods of service of Orders made under Part 4 of the Family Law Act 1996.

Their article reports that during lockdown not only did the numbers of deaths as a result of domestic violence triple but distress calls to domestic abuse hotlines soared. The government’s overall pandemic plan published on 3 March 2020 included no mention of domestic abuse or how lockdown might impact on the numbers of people needing to seek urgent protection. The consequent urgency brought about by the Coronavirus pandemic has meant that, instead of a rule amendment, the amendments are made by pilot provision and a Practice Direction making temporary changes to the rules.  Practice Direction 36U came into force on 3 August 2020 and will cease to have effect on 3 May 2021.  Whilst in force:

– rule 10.3(1), which requires personal service of on notice applications on the respondent, is expressly made subject to any order made under rule 6.35 (alternative method of service) or rule 6.36 (dispensing with service); and

– rule 10.6(1), which requires personal service of non-molestation and occupation orders, is again made expressly subject to any order made under rules 6.35 (alternative method of service) and 6.36 (dispensing with service).

It has therefore finally been put beyond doubt that the court can order an alternative method of service of both applications and orders under Part 4 of the 1996 Act. This being welcome news for practitioners and victims where alternative service is the only means of bringing an order to the attention of an alleged perpetrator. The PD also makes clear:

– it does not have retrospective effect;

– but the rules as modified apply to all applications and orders under Part 4 of the 1996 Act, whether made or before the PD came into force;

– the making of the PD to alter the rules is not to be taken as any indication that the unmodified rules did not allow alternative methods of service of Part 4 applications and orders: ‘Nothing in this practice direction affects any power to order alternative service, or dispense with service, of orders and applications made under Part 4 of the 1996 Act that may exist under the FPR as they apply prior to the coming into force of this practice direction.’

 

In the meantime, we would emphasise again that the CPS do not require evidence of personal service before deciding to prosecute for breaches of non-molestation orders.  The more evidence that can be obtained that the respondent is aware of the existence of the order, and of the terms of the order, the less likely it is that the CPS will decline to prosecute or that a defendant would be able to establish the ‘reasonable excuse’ defence. This might include evidence of a respondent having prior to, or at the time the order was sent, responded to messages, emails, WhatsApp messages sent to the number or email address to which the order was sent. Where possible include ‘read receipts’ with emails or make use of the ‘blue ticks’ function on WhatsApp providing evidence that a message has been read. It is clearly not in the interests of justice for individuals to be prosecuted or face civil actions for committal where they are unaware of the terms of an order. However, where it can be shown that a respondent has been made aware by way of alternative service it would be an encouragement to offenders to use the technicality of a lack of personal service to defeat the purpose for which the order was designed.

 

Full coverage of their article is at : https://www.familylawweek.co.uk/site.aspx?i=ed212030

Applying for such orders can be a daunting process and whilst it is sad to see people so vulnerable due to domestic abuse, we understand it and are here to help support you through your case. Please do see our FAQs section for family law queries on the services page.

 

Suezanne King

Partner

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