There are times when courts have to make orders without one party being told about it because of concerns such as how they may respond if they knew that the order could be made in advance of it being made. Such orders as known as ex parte orders.
Fundamentally an ex parte order is unfair because one party has not had an opportunity of having their say and being heard by the court.
Injunction orders made against one estranged partner can be the sort of order that a court is often asked to make ex parte.
The President of the Family Division has issued practical guidance on principles to be applied by a court when making ex parte orders and has stated that compliance with the following principles is essential:
(a) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date.
(b) It is not sufficient merely to specify a return day (the date when the court is going to look at the case again). The order must say specifically when the ex parte order it makes will expire e.g. 4.30pm on 19 June 2015.
(c) The duration of the ex parte order should not normally exceed 14 days.
(d) The order must also specify the date, time and place of the hearing that is scheduled as the return day. It is usually convenient for this date to coincide with the expiry date of the order e.g. 10.30am on 19 June 2015, on the basis that the ex parte order would be expiring at 4.30pm that day (or sooner if the court looks at the case and makes any change to the order some time after 10.30am that day).
(e) The order must contain a statement of the right to make an application to set aside or vary the order. It must spell out that the person against whom the ex parte order is made – the respondent is entitled without waiting for the return day (e.g.19 June) to apply to set aside or vary the order.
(f) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency within a matter of days at most.
Bill Wilkins is a partner in the Stephens Scown Family team. He specialises in all aspects of family and child care law and is a member of the Law Society’s Child Care Panel. Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. Bill can be contacted on 01932 210700 or email solicitors@stephens-scown.co.uk