|
Notes for Tutors
Purpose of Session
|
|
|
to enable:-
|
their legal advisers
their legal advisers
administrative support staff who are substantially
involved in handling related paperwork
|
|
to appreciate:
|
that undertakings can be accepted by family Proceedings
courts under Part IV of the 1996 Act
the principles governing where it is appropriate
and when it is not appropriate to accept undertakings
|
|
Method
|
advance reading suitable for all three categories
of student
reinforcement of salient points by brief input
by tutor
consider use of material already considered in
this training pack for other purposes
|
|
Materials
|
Notes for advance reading as supplied
Case studies supplied for session on non-molestation
orders
Checklist, as supplied
Specimen form of undertaking, as supplied
OHP slides, as supplied
|
|
Duration of Session
|
70 minutes, including 25 minutes working group and
30 minutes plenary session
|
|
Stage of Training for the FLA
1996
|
After consideration of non-molestation orders and
before the session on enforcement
|
What is an undertaking?
An undertaking is a promise by the respondent either to
do or not to do some specified act and/ or agreeing to
leave the home.
It is an alternative to the making of a court order.
An undertaking can be accepted from any party to proceedings
in which the court would have power to make an occupation
order or a no-molestation order (S 46 (3)).
When can an undertaking not be accepted?
The court has no power to accept an undertaking in any
situation where, upon making an order, a power of arrest
would have been attached (S 46 (3)).
Where there is violence or threat of violence alleged
by the applicant, the attachment of a power of arrest is
available as of right ( S 47 (2)) and the court should
not therefore accept an undertaking unless satisfied that
any order would have provided adequate protection in itself
without the need for a power of arrest. It may be possible
to accept an undertaking in circumstances where the initial
claims were some what exaggerated, both parties subsequently
deny the alleged violence or threat of violence and the
applicant who is represented, is willing to file an amended
statement of application.
Effect of an undertaking
If the parties agree an undertaking, in circumstances
where violence or the threat of violence has not been alleged,
the court cannot refuse to accept it, cannot insist that
the allegations are proved and cannot proceed to make an
order.
An undertaking may have several advantages for all concerned;
-
From the respondent's point of view, the advantage
of giving an undertaking is that (s)he makes no admission
that the allegations are true and the court makes no
finding of fact that the allegation has been proved.
-
From the court's point of view an undertaking avoids
the need for a contested hearing.
-
From the applicant's point of view, (s)he is given
the same protection by the acceptance of an undertaking
as by the making of a non-molestation order and/ or
an occupation order in that the sanctions for breach
of an undertaking are the same as those for breach
of an order. The only difference is that no power of
arrest can be attached to an undertaking because it
is not an order of the court.
How is an undertaking given?
An undertaking may be given to the court, in writing,
either;
-
on the prescribed form if the respondent is present
before the court with the respondent endorsing his
or her signature on the wording agreed between him
or herself and the applicant or,
-
in the respondent's absence, by a solicitor or counsel
on the respondents behalf, if the prescribed form is
signed personally by the respondent and is accompanied
by a letter signed by solicitors on their headed note
paper, certifying the legitimacy of the signature,
that an explanation has been given to the respondent
as to the effect of the undertaking and the respondent
appeared to understand the explanation.
It may also be appropriate for the bench to warn the respondent
present in court of the consequences of any breach of the
provisions of an undertaking.
Enforcement of undertakings
An undertaking is binding on the giver from the moment
it is accepted by the court.
It is unclear exactly how specific an undertaking must
be before it is enforceable. While a specific undertaking
makes it clear as to what the respondent is expected to
do or to refrain from doing, there may be a disadvantage
in making the undertaking too specific as it could provide
an opportunity for the respondent to simply vary the manner
of his or her anti-social behaviour without fear of breaking
the undertaking.
An undertaking given to the court in proceedings under
the Family Law Act 1996 is enforceable as if it were an
order of the court (S 46(4)).
NOTE:
Although the Government believes that undertakings are
enforceable under Part IV it is the view of the JCS that
a power of arrest may not be attached to an undertaking
and the enforcement provisions under the FLA 1996 do not
apply. The usual provisions in respect of disobedience
of a magistrates' court's order apply (Magistrates' Courts
Act 1980, s 63 (3)). The respondent may be ordered to pay £50
for every day that he is in default ( upto a maximum of £1000)
or a sum not exceeding £5000 or he may be committed to
custody until he has remedied his default or for a period
not exceeding two months.
These powers may be exercised by the court of its own
motion, if the person who has disobeyed the undertaking
is already before the court and having allowed the respondent
the opportunity to make representations or following the
laying of a complaint by the other party and the issue
of a summons requiring his attendance before the court.
The summons should state clearly the details of the alleged
breach.
Variation of an undertaking
It is usual for an undertaking to be limited to a specified
period of time rather than binding upon the giver to act
or to desist from acting in a particular way for ever more.
At any time while an undertaking is in force, it may be
varied by the making of a subsequent undertaking in amended
terms.
Specimen Form of Undertaking
In the Shoreditch Family Proceedings Court
|
Between
|
Nancy Sykes
|
Applicant
|
|
and
|
Bill Sykes
|
Respondent
|
On the 1st day of April 1997, Bill Sykes of 9 Dickens
Way Whitechapel appeared personally and was represented
by solicitor / counsel and gave an undertaking to the court
promising that he would not sit outside the house of his
estranged wife Nancy, at 2 Lupin Avenue Shoreditch, at
any hour of the day or night, observing the said house,
either from his car or from the road or follow her when
she left the said house.
And to be bound by these promises until the sale of the
said house or the expiry of three months from this date
whichever event first occurs.
The Court explained to Bill Sykes the meaning of his
undertaking and the consequences of failing to keep his
promises,
And the Court accepted his undertaking.
Signed
------------------------------------------------
Date 1st April 1997
* You may be sent to prison or fined if you
break the promises that you have given to the Court
If you do not understanding anything in this document
you should go to a solicitor, Legal Advice Centre or a
Citizen's Advice Bureau
Undertakings Checklist
-
Is the proposed undertaking to be made in proceedings
instituted under the Family Law Act 1996 ?
If not, there is no power for magistrates to accept an undertaking.
-
Are both / all parties agreed that the proposed undertaking
should be given ?
If not, there is no power to accept the undertaking.
- Does the initial application allege violence or threat
of violence by the respondent or has such an allegation
subsequently been made to the court?
If so, there is usually no power to accept an undertaking.
Back
to top