Session One - OHP's

The Family Law Act 1996

PART I	Underlying principles for Parts II and III This part is likely to come into force as soon as any aspects of Parts II or III come into effect
PART II	Divorce and Separation At the time of writing (September 1998) pilot studies are being carried out in certain areas. The date for implementation is not yet known.
PART III	Legal aid and mediation This part is now in force. It has relevance for Part IV in any event
PART IV	Occupation of Family Homes and Domestic Violence This part came into force on 1 October 1997
PART V	General Supplemental Provisions In particular there will be a power to make regulations to provide for the separate representation of children in certain proceedings (including Part IV proceedings)

 

•	TEN SCHEDULES
•	NOTE:	Only Part II and some schedules not directly relevant form Family Proceedings Courts

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PART III - LEGAL AID& MEDIATION

• AMENDS LEGAL AID ACT 1988
• "DISPUTES RELATING TO FAMILY MATTERS" e.g.
• CHILDREN ACT 1989 - PARTS I to V
• PARTS II & IV FAMILY LAW ACT 1996
• MATRIMONIAL CAUSES ACT 1973
• LEGAL AID BOARD MAY "SECURE MEDIATION"
• NO OTHER STATUTORY CRITERIA
• GRANT OF MEDIATION BY LEGAL AID BOARD
• SIMILAR FINANCIAL ELIGIBILITY?
• CODE OF PRACTICE FOR MEDIATORS
• CONTRACTS/FRANCHISES
• NO LEGAL AID WITHOUT EXPLORING MEDIATION

(except Part IV FLA 1996 and Parts IV & V CA 1989)

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PART II - DIVORCE & SEPARATION

• TWO NEW ORDERS
• NO DECREES NISI or ABSOLUTE
• SINGLE TEST - marriage broken down irretrievably
• NO DIVORCE IN FIRST YEAR OF MARRIAGE
• NO CONVERSION OF SEPARATION IN FIRST 2 YEARS OF MARRIAGE
• INFORMATION MEETINGS
  (exceptions)
• STATEMENT OF MARITAL BREAKDOWN
  (after at least three months)
• PERIOD OF REFLECTION AND CONSIDERATION
  (min. 9 months, 15 months if children under 16)
• FUTURE ARRANGEMENTS MADE
• COURT CONSIDER CHILDREN ACT POWERS
• ORDER PREVENTING DIVORCE - HARDSHIP
• COMMENCEMENT 1999?
• PILOT INFORMATION MEETINGS

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PART I

GENERAL PRINCIPLES FOR DIVORCE, SEPARATION AND MEDIATION

• INSTITUTION OF MARRIAGE TO BE SUPPORTED
• SPOUSES TO BE ENCOURAGED TO SAVE MARRIAGE
• All practical steps to be taken
• Counselling or otherwise

 

• ON IRRETRIEVABLE BREAKDOWN OF MARRIAGE, WORK FOR
  • minimum distress
• good and continuing relationships
• avoidance of unreasonable costs

 

• RISK OF VIOLENCE TO BE REMOVED / DIMINISHED

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Terminalogy to be Distinguished

• MARRIAGE SUPPORT SERVICES
  (S.22 FLA 1996)

• INFORMATION MEETINGS
  (prior to divorce)

• COUNSELLING
  (marriage support services e.g. especially during Period of Reflection and Consideration)

• MEDIATION
  (assistance to negotiate agreed outcome to disputes in "family matters")

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The Family Law Act 1996: SESSION ONE
NON-MOLESTATION ORDERS

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The Family Law Act 1996: NON-MOLESTATION ORDERS

Notes for Tutors PURPOSE OF SESSION
to enable:-	magistrates who are members of the Family Panel their legal advisers administrative support staff who are substantially involved in handling related paperwork
to:-	familiarise delegates with the types of behaviour and situations in which a non-molestation order could be made the aim is to emphasise that in the absence of a definition of "molestation" in the FLA 1996 courts should draw on existing case law in order to achieve a consistent approach that the concept of "associated persons" has widened considerably the range of applicants for orders in the magistrates' court that the concept of "relevant child" has widened the circumstances in which an order can be made that attitudes to "domestic violence" have to alter to reflect the social scene as it exists today

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The Family Law Act 1996: NON-MOLESTATION ORDERS

METHOD	The tutor should select an appropriate number of short answer questions. It is anticipated that the delegates will be divided into small groups to discuss the scenarios in order to decide whether or not the behaviour of one or more persons in the scenario could amount to molestation whether or not one or more persons in the scenario would be entitled to apply for a non-molestation order whether there are any other issues to be decided buzz groups (with/without facilitator) advance reading for all three categories of student (notes) reinforcement of salient points by brief input by tutor
MATERIALS	OHP slides as supplied Notes for advance reading as supplied by tutor (excerpts from the Law Commission report) Copies of questions - flip chart Justices Reasons Proforma
DURATION OF SESSION	2 hours 30 minutes, including 15 minute break
STAGE IN TRAINING FOR THE FLA 1996	This session is designed to be undertaken towards the start of the programme after the introduction but before more detailed case study is undertaken NB: Some participants will hold more conservative views than others about family relationships There is unlikely to be sufficient time for discussion on the "rights and wrongs" of the legislation.

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The Family Law Act 1996: NON-MOLESTATION ORDERS

EXCERPTS FROM THE LAW COMMISSION REPORT
"FAMILY LAW, DOMESTIC VIOLENCE AND OCCUPATION OF THE FAMILY HOME"

These excerpts are provided as background information to assist delegates in understanding the reasoning behind the main aspects of the new legislation concerning non-molestation orders, associated persons and the concept of the relevant child. Depending on the programme being delivered, tutors may wish to provide copies of these excerpts as a source of further reference/reading.

"Domestic Violence"

Paragraph 2.3

"Domestic violence" can take many forms. The term "violence" itself is often used in two senses. In its narrower meaning it describes the use or threat of physical force against a victim in the form of an assault or battery. But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assaults to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well-being of the victim, albeit that there is no "violence" involved in the sense of physical force. Examples of such "non-violent" harassment or molestation cover a very wide range of behaviour. Common instances include persistent pestering and intimidation through shouting, denigration, threats or argument, nuisance telephone calls, damaging property, following the applicant about and repeatedly calling at her home or place of work. Installing a mistress into the matrimonial home with a wife and three children, filling car locks with superglue, writing anonymous letters and pressing one's face against a window whilst brandishing papers have all been held to amount to molestation. The degree of severity of such behaviour depends less upon its intrinsic nature than upon it being part of a pattern and upon its effect on the victim. Acts of molestation often follow upon previous behaviour which has been violent or otherwise offensive. Calling at the applicant's house on one occasion may not be objectionable. Calling frequently and unexpectedly at unsocial hours when the victim is known to be afraid certainly is. Such forms of abuse may in some circumstances be just as harmful, vicious and distressing as physical injuries. Other forms of "non-violent" abuse, such as the sexual abuse of a child, may in the long term be more harmful.

The Family Law Act 1996: NON-MOLESTATION ORDERS
Criticisms of the Legislation Prior to the Family Law Act 1996

Paragraph 2.26 A number of possible criticisms of the present law, and in particular the application of the Matrimonial Homes Act criteria, were put forward in the working paper and were generally approved by those who responded to it. These can be summarised as follows:

1. the criteria are now outdated, having first been enacted in 1967 for the purpose of identifying those non-owning spouses (usually wives) who were sufficiently deserving of long term accommodation in the matrimonial home to entitle them to resist dispositions to third parties; this was before most of the significant developments in this field;

2. by requiring the parties' conduct to be balanced against the other factors, the criteria may suggest that an ouster order is in effect punishment for bad behaviour, so that the court should be asking itself whether the respondent's conduct is serious enough to justify an order, rather than whether the effect upon the other people in the household is serious enough to do so;

3. these criteria with their concentration upon the conduct of the parties are applied to the whole range of very different situations: the need to provide immediate protection against violence or other forms of abuse; the need to resolve short term problems of accommodation when a relationship is or may be breaking down; and the need to resolve longer term problems where the relationship has already broken down;

4. where divorce proceedings have already begun, there may well be a need to resolve disputes about who should live in the matrimonial home in the short term, and if possible this should be done without either pre-judging issues which may be in dispute in the proceedings or forcing upon the parties a procedure that is based on language relying on conduct and fault whether or not they wish to pursue the disputes between them in those terms;

5. there is a risk that the children's welfare will be given insufficient weight, contrary to the general trend towards giving increased, if not predominating, weight to their interest even in relation to matters of finance and property;

6. a general assumption that the effects of an exclusion order are invariably so severe as to merit the terms drastic or even draconian, while obviously warranted in many cases, may obscure the considerable differences between the circumstances of the individual parties and in which the remedy is sought; in combination with a requirement that the respondent's conduct be bad enough to merit such a step, this may impede the sensible and practical resolution of the particular problem presented;

7. the Matrimonial Homes Act criteria are not easily applicable to unmarried couples, for example because they do not give any indication of the relevance, if any, of respective property rights.

The Family Law Act 1996: NON-MOLESTATION ORDERS

Paragraph 2.27 A further difficulty is that the present remedies available in the magistrates' courts are much more limited than those in the superior courts. The Domestic Proceedings and Magistrates' Courts Act 1978 applies only to spouses, not to cohabitants, and the remedies it provides are limited to cases of actual or threatened violence. There is thus no remedy in the magistrates' court for non-violent harassment.

Paragraph 2.8
The present law can also be criticised on the ground that it provides no protection for a number of people who have the misfortune to fall outside the specific categories of people covered by the different acts, but may nevertheless have a clear need for such protection. Thus, many remedies are unavailable once the spouses are divorced. A former spouse cannot apply to a magistrates' court under the 1978 act, nor can she apply under the 1976 act unless she and her former husband are still living together as husband and wife after the decree. Rights of occupation under the Matrimonial Homes Act 1983 also end on decree absolute unless the court has ordered otherwise. Although it may be possible to obtain a non-molestation order and perhaps an ouster order in the divorce proceedings, there is no general power to adjust the parties' rights of occupation pending the conclusion of the ancillary relief application, and because the parties are no longer husband and wife, the court cannot attach a power of arrest or injunctions against violence under s.2 of the Domestic Violence and Matrimonial Proceedings Act 1976. Similarly, in the case of cohabitants, there is no power to provide protection once the relationship has ended. The only alternative is to proceed in tort, but this is a more cumbersome procedure, and is unlikely to be as effective because of difficulties over the precise scope of the protection available against molestation. Yet protection is often very necessary against former cohabitants or spouses who find it impossible to accept that the relationship is over.

"Molestation"

Paragraph 3.1
Molestation is an umbrella term which covers a wide range of behaviour. Although there is no statutory definition of molestation, the concept is well established and recognised by the courts. Molestation includes, but is wider than, violence. It encompasses any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as

The Family Law Act 1996: NON-MOLESTATION ORDERS

to call for the intervention of the court. To obtain a non-molestation order there has to be some evidence of molestation. In the working paper we asked whether the term "molestation" should be defined by statute. The overwhelming view of respondents was that any reform of the law in this area should not reduce the current level of protection from molestation. There was no evidence of problems having been caused in practice by lack of a statutory definition. Some concern was expressed that a definition might become over restrictive or that it could lead to borderline disputes. Consequently, we recommend that the courts should continue to have power to grant protection against all forms of molestation, including violence, and we further recommend that there should be no statutory definition of molestation.

Drafting the Order

Paragraph 3.2
Under the present law, the precise scope of a non-molestation injunction can be tailored to the requirements of the particular case. Traditionally, a common form of order restrains the respondent from "assaulting, molesting, or otherwise interfering" with the applicant. This general prohibition can be followed by a more precise injunction against specific kinds of behaviour complained of. It is important that non-molestation orders should retain this dual capability. Where it is obvious that there should be a limitation on a particular sort of behaviour, the order should be specific so that the respondent is left in no doubt about what he must stop doing. However, the order also needs to be sufficiently general to cover any other objectionable behaviour in which the respondent may subsequently decide to indulge. Although the Civil Justice Review recommended the use of standard forms for civil proceedings, standard forms of injunction can mean that some prohibitions which are included are inappropriate. It seems to us that rigid standard forms and even more rigid use of these are undesirable. We therefore recommend that the power to make non-molestation orders be so framed as to make it clear that the order is a flexible one, capable of being tailored to the requirements of the particular case, but the court should also be able to prohibit molestation in its general form if the case so demands.

Applicants and Associated Persons

Paragraph 3.18
Our proposal in the working paper to maintain the present level of protection and extend it to former spouses, former cohabitants and perhaps parents or people with parental responsibility for the same child met with broad acceptance. No one who responded to the working paper suggested that the protection available at present should be reduced, and many people commented on the need to extend it, particularly to former spouses and former cohabitants. Several practitioners who responded made the specific point that a high proportion of their domestic

The Family Law Act 1996: NON-MOLESTATION ORDERS

violence case load consisted of former wives and former cohabitants and said that the failure of the present legislation explicitly to provide protection for these two groups caused a great deal of difficulty in practice. In their experience, bitterness commonly persisted long after separation, especially where one party was unable to accept that the relationship had come to an end. In our view, the case for extending protection to former spouses and former cohabitants is inescapable and it should be possible for a non-molestation order to be made in favour of a spouse or former spouse or for a man or woman who is living or has lived with the respondent as man and wife. We do not consider the adoption of a "household" test to be necessary in the sense of requiring spouses and cohabitants to be or to have been living in the same household. This would introduce a new requirement in the case of spouses and could reduce the protection available under the present law. In the case of people living together as husband and wife, such a requirement seems unnecessary given that "living with each other as husband and wife" has been held to connote something more than living in the same household, and that cohabitation in the sense of living together as husband and wife can continue although the parties are actually living apart through force of circumstances.

Paragraph 3.21
Having chosen to base our recommendations upon association through family relationship, it becomes necessary to define the relationship in question. We have not found this to be an easy task, but have eventually settled upon six types of relationship in addition to spouses, cohabitants, former spouses and former cohabitants. The first is anyone who lives or has lived in the same household as the respondent, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder. This is intended to include people who live in the same household, other than on a purely commercial basis. It would, for example, exclude a student renting the spare bedroom or a live-in nanny employed to care for children. The phrase "living in the same household" may be expected to retain the usual meaning which it has acquired in matrimonial proceedings. Thus, it is possible for people to live in different households, although they are actually living in the same house. The crucial test is the degree of community life which goes on. If the parties shut themselves up in separate rooms and cease to have anything to do with each other, they live in separate households. But if they share domestic chores and shopping, eat meals together or share the same living room, they are living in the same household, however strained their relations may be.

The Family Law Act 1996: NON-MOLESTATION ORDERS

Paragraph 3.22
We recognise that this approach may on occasion involve distinctions which at first sight seem strange. For example, remedies may be available under this jurisdiction to three or four friends sharing a flat if they are all joint tenants, but not between the one who takes a tenancy and sublets to his friends. Nevertheless, however similar the factual circumstances may appear, the legal relationship of landlord and tenant is quite unlike that of equal household sharers and our recommendations are designed to preserve that distinction. Thus, the category of people living in the same household is needed to cover people such as those mentioned above, the close friends who have lived together on a long term basis, whatever the precise nature of their relationship.

Paragraph 3.23
The second category includes immediate relatives, whether blood relative or relatives by affinity, including in the case of cohabitants, people who would have been relatives had the parties been married. Applications can still be made in respect of these categories of people after divorce or after cohabitation has ceased. We are satisfied that there is need to cover these cases, which are not always adequately provided for under the present law of tort.

Paragraph 3.24

(The category of those in a sexual relationship was not included in the act)

A further group important in terms of the extent of the problems which can arise, although difficult to define in legislative terms, includes people who have been boyfriend and girlfriend in a romantic relationship which might have varying degrees of sexual involvement. Such relationships are possibly easier to recognise than to describe, but we envisage that there would have been a degree of mutuality and some participation in consensual sexual activity, although not necessarily amounting to sexual intercourse. This group would not include an unbalanced stranger who develops an obsession from a distance, as this would not involve the required family association. However, rejection at even an early stage of a relationship which has begun on a mutual basis can have a devastating effect and give rise to surprisingly odd and obsessive behaviour which quickly becomes frightening or intimidating to the person seeking to end the relationship. We consider that people in this position have just as great a need for, and possibly even more justification for seeking, protection as have spouses and cohabitants whose relationships have broken down. In addition couples who are or have been engaged to marry one another are equally worthy of protection. However, it may be that the couple have neither cohabited nor had a sexual relationship and hence we consider that couples who are engaged or have at any time agreed to marry each other should be covered in a separate category.

The Family Law Act 1996: NON-MOLESTATION ORDERS

Children

Paragraph 3.25
The final categories cover people who are parents of a child or, in relation to any child, are persons who have or have had parental responsibility for that child and people who are parties to the same family proceedings. Although these categories will often overlap, they will not always necessarily do so. These categories are needed to ensure that it is always possible for a non-molestation order, in appropriate circumstances, to be attached to any order made under the Children Act 1989. Such orders were sometimes attached to custody orders under the Guardianship of Minors acts and may similarly be necessary in proceeding under the 1989 Act. Such a provision, together with power for the court to make orders of its own motion in family proceedings should ensure that all eventualities are covered. Parents may never have lived together, and people with parental responsibility might not fall into any of the categories mentioned above. However, in common with these other categories, concern and responsibility for a child's welfare can give rise to strong emotions and unreasonable behaviour. An extreme example of a situation in which such protection would be needed might be a case in which children are fostered or adopted after their father has killed their mother. If the father discovers the children's whereabouts after his release from prison, their new carers might well wish to seek protection against molestation particularly in view of history of violence.

"Relevant Child"

Paragraph 3.7
The remedies in question are essentially those which an adult may seek, against another adult with whom he or she is associated, either for his or her own sake or for the sake of a child concerned. The working paper suggested that the children protected might include any child of or living with either party. This was, in effect, a combination of the various provisions of the present law. On reflection, however, we do not think it necessary for the court to be required automatically to consider the interests of (or to have power to make orders concerning) every child of either party. It may be quite unnecessary, for example, for the court to consider a child of one party's previous relationship who is now living with the other parent. On the other hand, there might be other children whose interests were indeed relevant in the circumstances of the case. Hence we propose that the court should have power to make orders for the protection of any "relevant child" (and for an occupation order, should be required to consider the interests of any relevant child). This would be defined as any child who is living with or might reasonably be expected to live with either party, any child in relation to whom an order under the Children Act 1989 or the Adoption Act 1976 is in question and any other child whose interests the court considers to be relevant. We do not in

The Family Law Act 1996: NON-MOLESTATION ORDERS

general think that there is much real risk of people applying for orders in relation to children for whom they have otherwise no responsibility; but it is clearly desirable for the court to have a discretion to make orders in relation to as wide a range of children as possible, without necessarily being required to consider the position of children whose interests may be completely unaffected by the issues before the court. Hence, the only classes of children automatically included are those whose interests will almost certainly be relevant in every case, because they are living with or might be expected to live with one of the parties or because the question of their welfare is already before the court. It is important that the court hearing proceedings under the Children Act or the Adoption Act should have power to protect the child involved in those proceedings against all forms of molestation and abuse. Other children would not be included automatically, but the court could do so in any case where it decided that their interests were relevant. To enlarge on the example above, the court might consider the interests of a child living with the other parent to be relevant if he frequently had long periods of staying access with one of the parties. We hope that this definition, together with provision for non-molestation orders to be made between people who are parties to the same family proceedings and power for the court to make such orders of its own motion or on application in any family proceedings, will ensure that orders can be obtained for the protection of children whenever they are necessary and appropriate.

Duration of a Non-Molestation Order

Paragraph 3.28
In the working paper we suggested that non-molestation orders should be made for any specified period or until further order. No distinction should be drawn on the basis of the class of applicant as protection should be available when and for as long as it is needed. Fixed time limits are inevitably arbitrary and can restrict the court's ability to react flexibly to problems arising within the family. In particular, it is important that non-molestation orders should continue to be capable of enduring beyond the end of a relationship, although in some cases short-term relief will be all that is necessary or desirable. For the reasons given earlier, we do not think that a formal distinction between short and long term remedies is necessary in this context. Accordingly, we recommend that non-molestation orders should be capable of being made for any specified period or until further order.

The Family Law Act 1996: NON-MOLESTATION ORDERS

The Family Law Act 1996: NON-MOLESTATION ORDERS

The Family Law Act 1996: NON-MOLESTATION ORDERS

The Family Law Act 1996: NON-MOLESTATION ORDERS

Making Orders of Own Motion
A non-molestation order can be made on the court's own motion in any "family proceedings" where the respondent is a party if the court considers such an order should be made for the benefit of any party to the proceedings or any relevant child.

(Family proceedings in this context include where an order has been made under s.44(A)(3) CA 1989)

The Family Law Act 1996: NON-MOLESTATION ORDERS

PROFORMA
JUSTICES' REASONS

NON-MOLESTATION ORDERS

We have heard an application by [ applicant's name ] for the grant of a non-molestation order to prohibit certain conduct carried out by [ respondent's name and explain the relationship which makes them associated persons i. e., her husband, former husband, boyfriend, former boyfriend with whom she lives or used to live ]

[Ex parte only - Leave was granted by the justices' clerk for a hearing without notice to [respondent's name] following representations by [applicant's name] that [insert the relevant provisions of s 45(2) ]]

We have read the statement(s) of [    ] dated [    ] and have heard evidence on oath from [       ]

[Hearing on notice where respondent not present - Although the applicant [applicant's name] is present in court today, the respondent [respondent's name] has not attended. However, a statement of service of this application has been filed and we are satisfied that [respondent's name] has been provided with adequate notice of this hearing]

[insert brief details of the substance of the allegations and, if the respondent is present or has filed a statement, brief details of his case]

[insert brief details of any findings of fact including weight given to any conflicting evidence]

We are satisfied that the intervention of the court is necessary in the circumstances of this case in order to provide protection to [name of applicant

and/or any relevant child] from the behaviour of [respondent's name] and in order to secure his/her health / safety / well-being [provide brief details if appropriate] .

The Family Law Act 1996: NON-MOLESTATION ORDERS

We therefore make a non-molestation order in the following terms: [insert the relevant provisions of orders 38, 39, 40, 41 on the menu of orders including any specific behaviour to be prohibited]

This order will last for a period of [    ] months / days [as appropriate] from today [or, ex parte only - As this order has been made without notice being given to [respondent's name], it will last until [    ] when this court will be able to hear representations from both parties at a full hearing, following the filing of a further application]

[Power of arrest (application on notice)- As it appears that [respondent's name] has used [or threatened (as appropriate)] violence against [applicant's name and / or relevant child] we are attaching a power of arrest to the following provisions of the order [NB only 38 and / or 40]. This power of arrest will last until [      ]] or Although [respondent's name] has used (or threatened) violence against [applicant's name and / or relevant child] we believe that [applicant's name and / or relevant child] will be adequately protected without the attachment of a power of arrest to any provisions of this order because [insert brief explanation as to why the bench have reached this finding]

[Power of arrest (ex parte application) - As we believe that there is a risk of significant harm to [applicant's name and /or relevant child] from [respondent's name] if a power of arrest is not attached immediately to this order, a power of arrest will be attached to the following provisions: [NB only 38 and / or 40]