Department news update: 9th June 2010 Re C (Children)

Severine recently acted on an injunction case where she represented the Defendant father. The matter was heard in the Birmingham High Court by one of the most senior family high court judges in the country, Mr Justice McFarlane who is the leading authority on children law (Hershman & McFarlane Children Act Handbook).

The case has now been reported in the All England Law Reports [2009] EWHC 2933 (Fam) Re C(Children) . There was no decision on this particular issue since 2000 and the judge therefore reviewed the law and case authorities in giving his judgment.

Background

The case related to an appeal brought by the mother against an order made by the family proceedings court in Warwickshire. The order was a non-molestation injunction sought by the father, who was the mother’s former partner. He was the father of the parties’ child who was 6 at the time.

The issue of the appeal was not as to the content of the non-molestation order but as to the length of time that the justices sought to impose it. The order was until further order. The mother’s case before the justices was that the order should be time limited and that it should be limited to run for a period of one year.  It was the father’s case that the mother had from time to time exhibited volatile behaviour towards him and those who might seek to intervene (police) and the father in part attributed that to the mother’s habit of overindulging in alcohol and he also questioned whether there were mental health difficulties.

The involvement of the authorities commenced in or around February 2007 and the mother was charged and convicted of two offences of assaulting a police officer. Because of earlier offences for which she had been convicted and received a suspended sentence, she was sent to prison at the time for a period of 6 months.

Following her release, the father applied for a non-molestation injunction which ran up until March 2008.  The mother did not engage with the court process and did not attend the various hearings.  Following the expiration of the order in March 2008, the father reported further difficulties in encountering the mother’s behaviour either face to face or by means of text messages or phone calls and the mother’s drinking became more pronounced at around the turn of the year 2008 to 2009.

Following an incident where the mother attended his place drunk, she broke the door to gain entry to his premises. She was charged with criminal damage and received a 12 months conditional discharge for it.  When her bail conditions expired, the father stated that he started receiving text messages and telephone calls again which led him to re-apply for an ex parte non-molestation order, which was granted in April 2009. At the return date hearing, the non-molestation order was made until further order by the justices of the peace.

The mother subsequently appealed that order, i.e. the duration of the order rather than the order itself.

Held

Justice McFarlane held that the justices had not acted in a manner which was outside their discretion in coming to a conclusion as to the length of the order and were not plainly wrong in law as alleged by the counsel for the mother.

In his view, an indefinite order in the circumstances of this case was not outside the justices’ discretion and he dismissed the appeal accordingly.