6.1 The Family Law Act 1996, Part IV

Part IV of the Family Law Act 1996 ('the Act') introduced a comprehensive code of powers for the courts, covering a wide range of family members, based on the concept of 'associated persons'. The powers given to the High Court, the County Court and the Magistrates Court are, to all intents and purposes, the same. A helpful flow chart can be found at Appendix 4. This is the principal form of injunctive relief that will be sought in family proceedings, but other applications may be made, e.g. under section 37 of the Matrimonial Causes Act 1973 or the Protection from Harrassment Act 1997. See further in the JSB's Civil Bench Book.

The governing Rules are FPR 3.8, 3.9, 3.9A, 3.10, 4.24A and 8.1A.

These notes are intended as an introduction to the Act. They do not pretend to be comprehensive. The Act is detailed and far more complex than its predecessors, in particular in its use of defined terms - there are over 20 definitions, some of which are set out in the definition sections to Part IV itself (sections 62 and 63) and some of which appear within individual sections. The key definitions are set out in these notes in context.

The central provisions of the Act may be summarised as follows:

1. The family rights of the non-owning/non-tenant spouse derived from the MHA are broadly re-enacted, and defined as 'matrimonial home rights' (sections 30-32 and Schedule 4).
2. A wide range of powers to make 'occupation orders' is given by sections 33-38. Different sections apply depending on the relationship to each other of the persons concerned and the nature of the existing occupation rights each may have. Such orders may be sought by spouses, former spouses, cohabitants and former cohabitants. They are also available to other categories of 'associated persons' provided that the applicant has an existing right to occupy the home. Each section sets out the factors which govern the merits of an application under it and the maximum duration of any order the court may make. Sections 39-41 contain supplementary provisions which include powers to make orders as furniture, outgoings, maintenance, etc.
3. Non-molestation orders can be made, in general or specific terms (section 42).
4. Ex parte orders can be made in the circumstances set out in section 45, but an 'on notice' hearing must follow.
5. Undertakings may be accepted, subject to the restrictions set out in section 46.
6. A power of arrest must be attached to an occupation or non-molestation order sought on notice unless the court is satisfied that the applicant (or child) will be adequately protected without one (section 47).
7. Where an order not containing a power of arrest is breached, or where the power was not attached to the relevant provision, the court may issue an arrest warrant (section 47).
8. The court is given power to remand an arrested person on bail or in custody (section 47 and Schedule 5).
9. New powers to exclude suspected abusers from the home are given to courts making interim care and emergency protection orders under the Children Act 1989 (section 52/Schedule 6).
10. District judges have jurisdiction to make orders and to deal with breaches, including the power to commit.

Jurisdiction

6.2 Occupation and non-molestation orders - who can apply?

6.2.1 Non-molestation order (section 42). The applicant for a non-molestation order must be associated with the respondent.

6.2.2 Occupation orders (sections 33, 35, 36, 37 and 38). The parties to an application for an occupation order must, depending upon the section under which the order is sought, be either:

1. Spouses or former spouses, or
2. Cohabitants or former cohabitants, or
3. Associated with each other in some other way, the applicant having some-pre-existing right to occupy.

6.2.3 'Associated persons'. The definition of 'associated persons' is set out in section 62(3)(4) and (5). The list should be carefully studied, and read with other definitions which appear elsewhere in sections 62 and section 63. These provisions should be given a wide, purposive interpretation.

NB: There will be many cases where two people will be associated in more than one way. For example, spouses or former spouses will commonly be the parents of a child, as may be former cohabitants.

The principal categories of 'associated' persons are as follows:

1. Persons who are or who have been married to each other.
2. Persons who are cohabitants or former cohabitants. Cohabitants are defined as a man and a woman who, although not married to each other, are living together as husband and wife; former cohabitants is to be read accordingly, but cohabitants who subsequently marry each other are excluded. (See also section 41, as to additional considerations in cohabitant cases).
3. Persons who live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder. The word 'household' is not defined, and may present difficulties of interpretations. It would appear to be a matter of fact and degree in each case. It has, for example, been suggested that a group of students sharing a rented house may form a household. Notice that gender is not mentioned in this definition, so that persons of the same sex who share or have lived in the same household are included. The word 'merely' suggests that e.g. a landlord and lodger living in the same household may be associated if there is some further aspect to their relationship.
4. Persons who are relatives. The word 'relative' is very widely defined in section 63. Where, however, W divorces or separates from H, the new spouse or partner of H will not be associated with W, so the protection of this Act is not available to W.
5. Persons who have agreed to marry one another (whether or not that agreement has been terminated). Although no formality is required in this definition for the making of the agreement, section 44 precludes the making of an order under section 33 or 42 based on this form of association alone unless the agreement is evidenced in writing or by the gift of an engagement ring or a ceremony before witnesses. It is suggested that the evidence in writing could consist of a newspaper announcement of the engagement or the completion of forms at a Register Office or church, or a contract for a wedding reception. Further, where the agreement to marry has been terminated, sections 33(2) and 42(2) preclude the making of an application for orders under those sections more than three years after the termination.
6. Persons who, in relation to a child, are the parents or have had parental responsibility. For the purposes of the Act a child is a person aged under 18.
7. Persons who are parties to the same family proceedings as defined in section 63. 8. Certain persons involved in adoption proceedings.

6.3 Applications by children

A child for these purposes is a person aged under 18. A child may seek a non-molestation order or, provided he or she has an existing right to occupy, an occupation order. By section 43, if the child is under the age of 16, leave to apply must be obtained and Rule 3.8(2) applies; the application in Form FLA 401 is treated, in the first instance, as an application to the High Court for leave.

6.4 Matrimonial home rights

Sections 33 and 35 refer to 'matrimonial home rights'. That expression is used in the Act to refer to the rights which one spouse has in the home where the other spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or enhancement giving him or her the right to remain in occupation but the former is not. Section 30 gives the spouse who is not so entitled (inter alia) a right, if in occupation, not to be evicted or excluded except by an order under section 33, and, if out of occupation, a right with leave of the court to enter and occupy. This is in effect a re-enactment of the Matrimonial Homes Act 1983. The other rights given to the non-owning spouse, in particular in relation to registration, mortgages and tenancies are referred to below.

For most purposes of the Act, including the making of occupation orders, 'dwelling-house' includes any building or part of a building, which is occupied as a dwelling, and any caravan, house-boat or structure which is occupied as a dwelling, together with any yard, garden, garage or outhouse belonging to and occupied with it.

Occupation Orders

6.5 Section 33 orders - who can apply?

The applicant (A) will always be a person who is entitled to occupy the home or who has matrimonial homes rights in it (section 33(1)). A person's entitlement to occupy will be established from ordinary property law principles and may arise for example from joint or sole legal ownership, a joint or sole contractual or statutory tenancy, a contractual licence, proprietary estoppel, an entitlement under an express trust or by virtue of a beneficial interest rising under a constructive or resulting trust based on substantial contributions to purchase or improvements. The home in question must be or have been the home of A and another person with whom A is associated, or intended by them to be their home. While there is nothing in subsection (1) to require that other person to be the respondent (R), that is the effect of subsection (3). A can apply under section 33 whether or not R has any existing right to occupy.

6.6 Some examples

Section 33 can be used by A to obtain an order against R in all the following cases, which are shown to illustrate the wide range of situations the section will cover.

1. A and R are married to each other and own or rent the home in joint names.
2. A and R are married and the home is owned or rented in A's sole name.
3. A and R are married and the home is owned or rented in R's sole name. (NB: in 1. and 2. A is entitled to occupy; in 3. A as matrimonial home rights.)
4. A and R cohabit and own or rent the home in joint names.
5. A and R cohabit and the home is owned or rented in A's sole name. (NB: in 4. and 5., A is entitled to occupy, so can use section 33; had R been the owner or tenant, section 33 would not be available though section 36 would).
6. A and his brother R share a home owned or rented in joint names or in that of A.
7. A and her cohabitant R occupy the home she formerly shared with her husband X, the property being owned or rented in X's sole name. 8. A and her cohabitant R occupy the home she formerly occupied with her husband X, the property being owned or rented in the joint names of A and X. (NB: in 7., A is a person with matrimonial home rights while in
8. she is a person who is entitled to occupy; in each case she is associated with R).
9. A1 and A2 are spouses and co-owners or co-tenants of the home they share with their son R. (NB: A1 and A2 could apply jointly or one alone could apply. If the home were in the sole name of A1 the same result would follow since he is 'entitled to occupy', while A2 has matrimonial home rights as his spouse.)
10. . A has been deserted in the matrimonial home by her husband X. X's father R lived with them. (NB: This will be so if the home is owned or rented in the sole name of A or X or in their joint names, whether or not R is also 'entitled to occupy'. It will not be so however if R alone is 'entitled to occupy', as for example where he is the sole owner and A and X were bare licencees).

6.7 What are the court's powers?

By section 33(3) an order may:

1. Enforce A's entitlement to remain in occupation as against R;
2. Require R to permit to enter and remain in the home or part of it;
3. Regulate the occupation of the home by either or both of them;
4. Prohibit, suspend or restrict R's exercise of any rights to occupy he may have;
5. Restrict or terminate R's matrimonial home rights;
6. Require R to leave the home or part of it;
7. Exclude R from a defined area around the home.

The court may also:

1. Declare A's entitlement to occupy - presumably declaring what that entitlement is (section 33(4));
2. Declare that A has matrimonial home rights;
3. Provide that A's matrimonial home rights are not brought to an end by R's death or the termination (otherwise than by death) of the marriage (section 35(5));
4. Include other provisions under section 40 relating to repairs and maintenance, outgoings, furniture, etc. (see below);
5. Attach a power of arrest (see below).

6.8 Duration of the order

Under section 33 there is no maximum duration. The order may be made for a specified period, until the occurrence of a specified event or until further order.

6.9 The merits

The making of an occupation order is still regarded as 'draconian'. In deciding what, if any, order to make the court must have regard to all the circumstances including:

1. The housing needs and resources of the parties and of any relevant child;
2. The parties' financial resources;
3. The likely effect of any order (or a decision not to exercise its powers) on the health, safety or well-being of the parties and of any relevant child;
4. The conduct of the parties in relation to each other and otherwise, it being noted that what matters is the effect not the intention of the conduct (section 33(6)).

In addition the court must also apply the 'balance of harm test' contained in section 33(7). If it appears that A or a relevant child is likely to suffer significant harm attributable to conduct of R if an order containing one or more of the provisions in subsection (3) is not made, the court shall make the order unless it appears that R or any relevant child is likely to suffer significant harm if the order is made and such harm is likely to be as great as, or greater than, the harm attributable to the conduct of R which is likely to be suffered by A or the child if the order is not made. A good example can be found in the case of B v B (Occupation Order) [1999] 1 FLR 715.

'Harm' in relation to an adult means ill-treatment or impairment of health. In relation to a child it also includes impairment of development.

'Ill-treatment' includes non-physical forms and, in relation to a child, sexual abuse. Where the significance of harm suffered by a child turns on his health or development, these must be compared with those reasonably expected of a similar child (see section 63(1) and (3)).

A 'relevant child' means:

1. A child who is living with or might reasonably be expected to live with either party to the proceedings; or
2. A child, in relation to whom an order under the Adoption Act 1976 or Children Act 1989 is in question in the proceedings; or
3. Any other child whose interests the court considers relevant (section 62(2)).

An order under section 33 may be sought where there is no need to exclude R, etc.; this may include cases where all that is required is an extension of matrimonial home rights to survive R's death or a divorce. Consider also section 40.

6.10 Section 35 orders - who can apply?

The parties to an application for an order under section 35 will be former spouses, where R is entitled to occupy the home by virtue of a beneficial estate or interest, contract or enactment and A is not so entitled. The home must have been at some time their matrimonial home or intended to be so. A former spouse who has only an equitable interest in the home is treated as not being entitled to occupy for the purposes of being eligible to apply under this section but that is without prejudice to the right to apply under section 33 (section 35(11),(12)).

6.11 What are the court's powers?

If the court makes an order under section 35 it must contain one or two provisions; which depends upon whether A is or is not in occupation. If A is in occupation the order must give him/her the right not to be evicted or excluded from the home or any part of it by R for the period specified in the order, and prohibit R from evicting or excluding A during that period (section 35(3)).

If A is not in occupation, the order must give him/her the right to enter and occupy for a specified period, and require R to permit the exercise of that right (section 35(4)).

By section 35(5) the order may also include provisions similar to those in section 33(3) regulating occupation, prohibiting, etc. R's exercise of his right to occupy, excluding R from the home and defined area, etc.

The order may contain provisions under section 40 relating to repairs and maintenance, payment of outgoings, contents, etc.

NB: An order under section 35 may be sought where there is no need to include provision under subsection (5) to exclude R. The reason is that, by section 35(13), while an order under this section remains in force, A has certain of the rights given by section 30 including the right to pay rent or mortgage instalments to prevent possession proceedings being taken by the landlord or lender.

6.12 Duration of the order

The order must be limited to have effect for a specified period not exceeding six months, but it may be extended on one or more occasions for a further period not exceeding six months.

6.13 The merits

The court must take account of all the circumstances, those listed being similar to those in section 33(6) but with the addition of the length of time since the parties ceased to live together and since the marriage was dissolved or annulled, and the existence of any pending proceedings under section 23A or 24 MCA 1973, or for financial relief against parents under the Children Act 1989, or relating to the legal or beneficial ownership of the home (section 35(6)).

In addition, where the court is deciding to include a provision under subsection (5) to regulate occupation of the home or to exclude R, etc. there is a 'balance of harm' test to the same effect as that in section 33 (section 35(8)).

6.14 Section 36 orders - who can apply?

The parties to an application for an order under section 26 will be cohabitants or former cohabitants where R is entitled to occupy the home by virtue of a beneficial estate or interest contract or enactment, but A is not so entitled. The home must be one where they live or have lived together as husband or wife or intended to do so.

A person who has only an equitable interest in the home is treated as not being entitled to occupy so as to be able to apply under this section, but that is without prejudice to the right to apply under section 33(section 36(11)(12)).

6.15 What are the court's powers?

If the court makes an order under section 36 it must contain one of two provisions; which it is depends on whether A is or is not in occupation.

If A is in occupation the order must give him/her the right not to be evicted or excluded from the home or any part of it by R for the period specified in the order, and prohibit R from evicting or excluding A (section 36(3)).

If A is not in occupation, the order must give him/her the right to enter and occupy for a specified period and require R to permit the exercise of that right (section 36(4)).

By section 35(5) the order may also contain provisions similar to those in section 33(3) regulating occupation, excluding R from the home and defined area, etc.

The order may contain provisions under section 40 relating to repairs and maintenance, payment of outgoings, contents, etc.

NB: Orders under section 35 may be sought where there is no need to include provision under subsection (5) to exclude R. The reason is that by section 35(13) while an order under this section remains in force A has certain of the rights given by section 30 including the right to pay rent or mortgage instalments to prevent possession proceedings being taken by the landlord or lender.

6.16 Duration of the order

The order must be limited to have effect for a specified period not exceeding six months but it may be extended once for a period not exceeding six months (section 36(10)).

6.17 The merits

In deciding whether to make an order the court must have regard to all the circumstances including the factors listed in section 36(6) (which reflect those in section 33(6)) together with:

1. The nature of the parties' relationship;
2. The length of time during which they have lived together as husband and wife;
3. The length of time elapsed since they ceased to live together;
4. Whether they have or have had any children together, or both have or have had parental responsibility for any children;
5. The existence of any pending proceedings between them for financial relief under the Children Act 1989, or relating to the legal or beneficial ownership of the home.

Section 41 requires the court to have regard to the fact that they have not given each other the commitment involved in marriage when considering the nature of the parties' relationship.

In deciding whether to include provision under subsection (5) to regulate occupation, exclude R, etc., the court must have regard to the factors listed in section 36(6)(a)-(d) (which reflect those in section 33(6)) and have regard to the questions set out in subsection (8) which constitute the 'balance of harm test'. In this case, however, there is no duty on the court to include the subsection (5) provisions because of the result of that test.

6.18 Section 37 orders - who can apply?

The parties to an application for an order under section 37 will be spouses or former spouses occupying a home which is or was their matrimonial home, but neither is entitled to remain in occupation by virtue of a beneficial estate, interest, contract or enactment. It follows that neither can have 'matrimonial home rights'. It is likely in practice that they will be bare licencees in a property owned by someone else, or perhaps squatters. Note that both must be in occupation.

6.19 What are the court's powers?

The court may regulate occupation, exclude R from the home and defined area, etc. (section 37(3)). The order is binding on R alone and gives A no rights against any third party. The court cannot include provision under section 40 as to repairs, maintenance, outgoings, contents etc.

6.20 Duration of the order

The order must be limited to have effect for a specified period not exceeding six months, but it can be extended on one or more occasions for up to six months.

6.21 The merits

The provision of section 33(6) and (7) are incorporated, hence the familiar factors and the 'balance of harm test' are applied imposing a duty to make the order where its terms are met.

6.22 Section 38 orders - who can apply?

The parties to an application for an order under section 38 will be cohabitants or former cohabitants occupying the home where they live or lived as husband and wife, but neither is entitled to remain in occupation by virtue of a beneficial estate, interest, contract or enactment. The section covers, therefore, the cohabitant equivalents of the spouses in section 37. Note that both must be in occupation of the home, though not necessarily now living together as husband and wife.

6.23 What are the court's powers?

The court may regulate occupation, exclude R from the home and defined area, etc. (section 38(3)). The order is binding on R alone, giving A no rights against any third party. The court cannot include provision under section 40 as to repairs, maintenance, outgoings, contents, etc.

6.24 Duration of the order

The order must be limited to have effect for a specified period not exceeding six months, but it can be extended once for a further specified period not exceeding six months.

6.25 The merits

The familiar factors and 'balance of harm test' questions appear in section 38(4) and (5). There is no duty to make an order because the test is met.

6.26 Occupation orders: miscellaneous points

Section 39

1. Applications for occupation orders may be 'free standing' or made in other family proceedings, defined in section 63(2) (section 39(2)).
2. If the application is made for an order under the wrong section the court may make an order under the correct one (section 39(3)).
3. The making of an application or an order based on a lack of an entitlement to occupy does not preclude claiming a legal or equitable interest in any subsequent proceedings (section 39(4)).

Section 40. On or after making an occupation order under sections 33, 35 or 36 the court may:

1. Impose on either party obligations as to repair and maintenance or the discharge of rent, mortgage payments (as defined in section 63) or other outgoings (that word is not defined). Note that it is unlikely that such an order will make a party who is not already contractually bound to pay rent/mortgage payments/outgoings liable to the landlord/lender/provider, nor release the other from his obligations. The general law and sections 30(3), 34(1)(b) and 36(13) will entitle the occupying party to pay the rent or mortgage.
2. Order the occupying party to pay the other periodical payments in respect of the accommodation, provided that the latter would, but for the order, be entitled to occupy.
3. Grant either party possession or use of furniture or other contents of the home.
4. Order either party to take reasonable care of such furniture or contents.
5. Order either party to take reasonable steps to keep the home and contents secure.

In deciding how to exercise these powers the court must have regard to the parties' financial needs and resources and their foreseeable obligations including those to each other and any relevant child. Note that:

1. These new powers to deal with furniture and contents are important and should not be overlooked.
2. Any power of arrest attached to an order should be clearly worded so that it does not apply to a provision inserted under section 40.

Non-Molestation Orders

6.27 Section 42

A non-molestation order is an order prohibiting the respondent from molesting another person with whom s/he is associated and/or from molesting a relevant child (section 42(1)). The order may be expressed to refer to molestation in general or to particular acts of molestation or both (section 42(6)) and will usually be for a specified period, but may be until further order (section 42(7)).

An order may be made:

1. On a 'free standing' application
2. On an application made in other family proceedings
3. Without an application where, in other family proceedings to which the respondent is a party, the court considers an order should be made for the benefit of the other party or any relevant child (section 42(2)).

Note that the definition of 'family proceedings' in section 63 is widened for this purpose to include those where the court has made an emergency protection order under section 44 Children Act 1989 which includes an exclusion requirement.

In deciding whether and, if so, how to exercise its powers, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of A and any relevant child. Note that:

1. An order made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed (section 42(8)).
2. No application based on an agreement to marry between A and R can be made more than three years after that agreement was terminated (section 42(4)). The requirements of section 44 as to evidence of the agreement apply.

6.28 Attaching powers of arrest (section 47)

A power of arrest can be attached to an occupation or non-molestation order (a 'relevant order'). Except where the order is made ex parte the court has a duty to attach a power of arrest to one or more provisions of the order if it appears that R has used or threatened violence against A or a relevant child, unless it is satisfied that in all the circumstances of the case A or the child will be adequately protected without such a power of arrest (section 47(2)). The applicant will usually be best placed to say whether adequate protection exists.

As a general rule it is unwise to attach a power of arrest to a general non-molestation order. Best practice is to make a separate order relating to threats and violence and a separate order dealing with any specific molestation in the case and add the power of arrest to those orders. That will almost always effect adequate protection.

Where the order is made ex parte the court may attach a power of arrest to one or more provisions of the order if it appears that R has used or threatened violence as above and there is a risk of significant harm to A or the child attributable to conduct of R, if the power of arrest is not attached to those provisions immediately (section 47(3)).

See FPR 3.9A and Form FL 406 as to the drafting of orders, and note that the power of arrest may have a shorter duration than the provisions to which it is attached (section 47(4)).

6.29 Undertakings (section 46)

The court may accept a party's undertaking in any case where it has power to make a non-molestation or occupation order. An undertaking given to a court is enforceable as if it were an order. The court may not accept an undertaking if, were an order to be made, it would have attached a power of arrest. No power of arrest may be attached to an undertaking. Thus an undertaking will usually only be accepted where in itself it provides adequate protection for the applicant. Again the applicant will usually be the best judge of that.

6.30 Ex parte orders (section 45)

Non-molestation and occupation orders can be made where R has not been given notice of the proceedings under the Rules if it is just and convenient to do so. The court must have regard to all the circumstances including:

1. The risk of significant harm to A or a relevant child from R's conduct if the order is not made immediately;
2. Whether A is likely to be deterred or prevented from pursuing the application if the order is not made immediately;
3. Whether there is reason to believe R is aware of the proceedings but is deliberately evading service and A or a relevant child will be seriously prejudiced by the delay involved in effecting substituted service.

If an ex parte order is made a 'full hearing' must follow of which notice, in accordance with the Rules, is given to all parties as soon as just and convenient. In calculating the maximum duration of an occupation order made at a full hearing, time runs from the date of any 'initial' ex parte occupation order which preceded it.

NB:

1. See section 47(3) above as to attaching a power of arrest to an ex parte order.
2. The sworn statement supporting an application made without notice shall state the reasons why notice was not given (Rule 3.8(5)).
3. An ex parte order is to be served personally as above with a copy of the sworn statement.

6.31 Jurisdiction

The Family Proceedings (Allocation to Judiciary) Directions 1997 provide that proceedings under any part of the provisions of Part IV of the Act may be heard, in all circumstances, by:

1. A circuit judge nominated for private or public law proceedings;
2. A deputy circuit judge or recorder nominated for private family law proceedings;
3. A district judge of the Principal Registry of the Family Division of the High Court; or
4. A district judge. A deputy district judge may hear any proceedings under Part IV of the Act except proceedings to enforce an order under that Part.

6.32 Procedure

The procedural rules and Forms are contained in the Family Proceedings Rules 3.8 et seq. Section 45 contains provisions about ex parte orders.

6.33 The application (Rule 3.8)

Form FL 401 is prescribed. It must be supported by A's sworn signed statement. Where the application is on notice, the application, statement and notice in Form FL 402 must be served by A personally on R not less than two days before the hearing date. The court will serve if A is acting in person if A so requests. Time for service may be abridged. Substituted service may be ordered.

Applications for occupation orders under sections 33, 35 or 36 must be served by first class post on the mortgage or landlord with Form FL 416 (notice of right to make representations). Form FL 415 is the prescribed statement of service.

6.34 Hearings (Rule 3.9)

Hearings are in chambers unless otherwise directed. A record shall be made on Form FL 405. The court may direct a further hearing to consider representations by a mortgagee or landlord.

6.35 Orders (Rule 3.9)

Orders are to be in Form FL 404. They are to be served personally on R by A, or, if s/he is acting in person, by the Court, if A so requests. Mortgagees or landlords are to be served by first class post with occupation orders on applications under sections 33, 35 or 36. Where a power of arrest (Form FL 406) is attached to any provisions of the order they must appear in separate clauses that do not refer to any form of behaviour which would not entitle a constable to arrest R. see above.

6.36 Penal Notices

Note in particular Rule 3.9(5); an order containing a non-molestation order will always contain a penal notice, but an occupation order will only contain a penal notice if the court so directs (see Notices A and B in Form FL 404).

6.37 Amendments to the Children Act 1989

Section 52 and Schedule 6 introduce two new sections into the 1989 Act - sections 38A and 44A. In essence these enable the court to attach to an interim care order or an emergency protection order an exclusion requirement to remove the suspected abuser (the relevant person) from the home, rather than the child as at present. The court may require the relevant person to leave the dwelling house where he is living with the child, prohibit him from entering a dwelling house where the child lives and exclude him from a defined area in which is situated the dwelling house where the child lives.

There must be reasonable cause to believe that if the relevant person is excluded the child will cease or be likely to cease to suffer significant harm and another person living in the home must consent to the exclusion and be able and willing to give the care which it would be reasonable to expect a parent to give.

A power of arrest may be attached. An undertaking may be accepted. An exclusion requirement, power of arrest or undertaking will cease to have effect if a local authority removes the child to other accommodation for more than 24 hours.

See also FP(A3)R 1997 - Rules 3 and 4 and new Forms C11, C23 and C33.

6.38 Transfer of tenancies

Section 53 and Schedule 7 extend the powers of the High Court and County Court to transfer certain tenancies. The powers are also available on applications between former cohabitants. It must simply be shown in such a case that they have ceased to live together as husband and wife. The power is separate from those to make occupation orders. The procedure is governed by Rule 3.8(12)-(15).

Enforcement

6.39 Committal procedure - the rule

For the rule, see CCR Ord 29 r 1 and FPR 3.9A. Begun by notice in CC Form N78 and affidavit in support, or arrest under power of arrest or pursuant to a warrant of arrest issued under FLA section 47(8).

6.40 Warrant for arrest

Where no power of arrest has been attached to an injunction made under Part IV and there has been an alleged breach of the order, A may apply in Form FL407 for a warrant of arrest. Where a court is satisfied on sworn evidence (section 47(9)) that there is reason to believe that a breach has occurred, it may issue a warrant of arrest in Form FL408. It is a disputed point as to whether a warrant of arrest can issue on the alleged breach of an undertaking.

6.41 The allegations

N78 must list the ways in which R is alleged to have disobeyed the injunction or broken the undertaking. See Harmsworth v Harmsworth [1988] 1 FLR 349: no rules like Indictments Rules, but must identify to R the case he has to meet. See also Dorrell v Dorrell [1985] FLR 1089: details in affidavit not sufficient; affidavit is evidence, not form of notice.

6.42 Procedure following arrest

After arrest under a power of arrest or pursuant to a warrant of arrest:

1. The arrested person must be brought before a judge within 24 hours of arrest, not counting Christmas Day, Good Friday or any Sunday (FLA s.47(7));
2. The judge can adjourn, in which case the matter must be heard within 14 days, but it can be dealt with later on notice in Form N78 (FPR r 3.9A(4));
3. Even after arrest it is good practice to require R to be given written notice of the allegations of breach (Manchester CC v Worthington [2000] 1 FLR 11).

6.43 The power to remand

Where R has appeared before a court and the court has not disposed of the matter, it may remand R. The statutory powers of the court are to be found in section 47(10)-(12) and Schedule 5 of the Family Law Act. They include:

1. Remanding in custody:

   a) the maximum period of 8 days, or
   b) 3 days, if to the custody of a constable;

2. Remanding on bail (FPR rule 3.10):

a) with or without recognisances and/or sureties, (but no power to remand on unconditional bail)
b) with or without conditions, (but there is no machinery to enforce them)
c) for a maximum period of 8 days, or

• longer if either both parties agree, or
• the purpose of the remand is to obtain a medical report under section 48.

There is no guidance in the Act as to the criteria to be applied when using these powers, but the following will be crucial considerations:

a) the safety of A;
b) the need to prevent interference with witnesses or other evidence;
c) the attendance of R at the adjourned hearing;

However, unlike a criminal case, where a respondent is voluntarily absent, there is no bar to hearing the case.

3. remand for medical report, etc. The court has power under FLA section 48 to make mental health orders or to seek reports. These are broadly similar to the powers of the Crown Court. If such power is involved close attention must be given to section 48 and FPR 3.9A(7)-(8).

6.44 Trial process

The trial process is akin to a criminal trial although civil rules of evidence apply. However, compliance with procedural requirements is very important: Nicholls v Nicholls [1997] FLR 649 (CA). The standard of proof required is that of a criminal trial - beyond reasonable doubt.

6.45 Admissions

The judge must ascertain precise admissions or make precise findings of contempt and ensure they are recorded accurately in order in Form N79, whatever the disposal. Admissions should only be accepted where they represent the gravamen of the case although once again the applicant may be the best judge of that. Certainly the applicant must be heard on the adequacy of any admissions.

6.46 Decisions as to disposal

The judge must also ensure that the decision as to disposal is accurately recorded in Form N79. He should initial the draft or actual order when he has approved it. Indeed best practice is to draft your own findings and orders.

6.47 Disposal powers

Below are some of the factors to be taken into account when exercising the disposal powers of the judge on proof of disobedience of injunction or breach of undertaking.

6.48 Committal as the last resort

A committal is the last resort, only when other disposal is not appropriate: Danchevsky v Danchevsky [1975] Fam 17, Ansah v Ansah [1977] Fam 38. But there is no principle of 'first free breach' - an immediate committal may be appropriate for serious breach: Wilson v Webster [1988] 1 FLR 1097. For breach of family protection injunction, it is essential to offer the applicant an opportunity to give her views before deciding. For enforcement of section 8 Children Act orders, see below at paragraph 6.55. The Court of Appeal may entertain an appeal against sentence by either applicant or respondent.

6.49 Sentence

The maximum sentence which can be given on one occasion is two years (Contempt of Court Act 1981, section 14). Sentences can be consecutive, provided the total does not exceed two years. Where a suspended sentence is activated, the maximum including it cannot exceed two years: Villiers v Villiers [1994] 2 All ER 149.

6.50 Separate sentence for each breach

It is good practice to make separate sentence for each breach, if committing.

6.51 Suspended sentence or adjourned disposal

If suspending sentence, or adjourning disposal under FPR 3.9A(6), you must specify the terms on which the sentence may be activated or brought back for decision, and specify the date until which the suspension or adjournment is effective: N79 and Pidduck v Molloy [1992] 2 FLR 202. It is common practice to specify the same terms as the injunction or undertaking which has been breached. Exceptionally a suspended sentence may attach to an injunction without limit of time.

6.52 Principal alternative disposal powers

Also available are:

1. Further injunction and/or (where criteria apply) power of arrest;
2. Fine;
3. Sequestration;
4. Warrant of possession, for enforcing the occupation order;
5. Authorisation for act to be done at contemnor's expense;
6. Damages;
7. Costs;
8. Family Law Act 1986, section 34 (see below at Paragraph 6.54).

6.53 Principles of sentencing

These have been reviewed in Hale v Tanner [2000] 2 FLR 879. Perhaps amongst the main criteria will be:

1. To obtain compliance with the order;
2. To ensure that any sentence is actually commensurate with the seriousness of the breach(es);
3. To avoid immediate imprisonment if reasonably practicable and just to do so;
4. To make any sentence as short as is just having regard to the above matters.

6.54 Enforcement of orders under Children Act 1989, section 8

1. Committal is not available on declaratory orders; only an injunctive order or undertaking can be enforced by committal.
2. Committal should be last resort but may, where really necessary, be used: A v N (Committal: Refusal of Contact) [1997] 1 FLR 533 (CA).
3. A penal notice cannot be endorsed on a section 8 order without leave: FPR r 4.21A;
4. The Family Law Act 1986 section 34 should always be considered but note its restrictions. Its use is likely to be most unusual.

6.55 Purging contempt

Every contemnor has a right to apply to purge his contempt. Such an application should, where possible, be heard by the judge who made the committal order. On such application the court may:

1. Discharge the committal and order release;
2. Dismiss the application;
3. Fix a future date for release which is earlier than that which would apply under the order itself.

Once again, the main criteria are those set out in 6.53 above.

6.56 Concurrent criminal proceedings

Committal proceedings are intended to be a summary remedy and should not be adjourned to await the outcome of criminal proceedings unless the defence would be seriously prejudiced - see M v M [1997] 1 FLR 762, 764.