username

password

Prettyprotected.co.uk1 Garden CourtFamily Law Week Email SubscriptionAlpha Biolabs

Home > Articles

Non-molestation orders: Valid Service in the time of Coronavirus (Part 2)

Rachel Cooper and Michael Horton from Coram Chambers further consider the service of non-molestation orders in the time of Covid-19.

 

Rachel Cooper, barrister and Michael Horton, barrister from Coram Chambers .


Everyone loves a sequel.  In our first article, we looked at the policy issues concerning personal service of injunctions made under Part 4 of the Family Law Act 1996, specifically non-molestation orders and occupation orders, and whether personal service was an absolute requirement before these orders could be enforced.

In this second article, we examine in more detail the provisions of the Family Procedure Rules 2010 dealing with personal service of non-molestation and occupation orders, focussing on whether the court currently has the power to order alternative methods of service of such orders.  We then examine some forthcoming changes to the FPR 2010, specifically the new PD36U, and the way in which this practice direction clarifies the availability of alternative service of orders made under Part 4 of the Family Law Act 1996 in the interim. 

The enforceability of orders under Part 4 of the Family Law Act 1996 is vital when it comes to the efficacy of such orders for protecting victims of domestic abuse and their children. We noted in our last article that 16 women had been killed in suspected domestic homicides in the first month of the Coronavirus lockdown. At least 10 more women and girls have died in the two months since then, the oldest aged 82 years and the youngest aged just 2 years. Practitioners and their clients need to have confidence that orders can be enforced and that abusers who breach the orders will be prosecuted. We therefore welcome the pilot changes to the FPR 2010 made by PD36U in respect of service of orders and consider that in the long-term that full amendments to the FPR 2010 will be required to ensure that victims of abuse can be protected. 


The FPR rules about service

The general rules about service are in Part 6 of the FPR 2010.  Rule 6.1 provides that 'this Part applies to the service of documents, except where (a) another Part, any other enactment or a practice direction makes a different provision, or (b) the court orders otherwise.'  Chapter 2 of Part 6 contains rules for the service of divorce etc petitions (more properly known as applications for matrimonial or civil partnership orders).  This lays down the acceptable methods of service of such petitions: rule 6.4.  The court has a discretion to allow service by means other than those set out in rule 6.4, by an order made under rule 6.19.  Rule 6.19 provides that 'where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part', the court can direct service is effected by an alternative method or at an alternative place.

Chapter 3 of Part 6 contains the rules about service of all documents other than divorce etc petitions.  Rule 6.23 sets out the options for service of such documents.  However, rule 6.25(1) provides that: 'Where required by another Part, any other enactment, a practice direction or a court order, a document must be served personally.'  Rule 6.35 allows for alternative methods of service – it applies rule 6.19 to 'any document in proceedings as it applies to an application for a matrimonial or civil partnership order'.  Rule 6.36 provides that 'the court may dispense with the service of any document which is to be served in proceedings'.


The rules about service of applications and orders under Part 4 FLA 1996

As we set out in the first article, Part 10 of the FPR apply specifically to proceedings under Part 4 of the Family Law Act 1996. FPR rule 10.3 applies to service of an application under Part 4 FLA 1996.  Rule 10.3(1) states that the applicant must serve the application and evidence in support on the respondent personally not less than two days before the hearing or within such period as the court may direct. Distinguishing rules 10.6 and 10.3 is the signpost at the end of rule 10.3 which provides that ('Rule 6.23 makes provision for the different methods of serving a document and rule 6.35 provides for the court to authorise service by an alternative method.)'

The relevant rule for service of the order is FPR rule 10.6(1). This rule provides that 'the applicant must, as soon as reasonably practicable, serve on the respondent personally – (a) a copy of the order ...'.  This rule applies whether the order has been made without notice or at an inter partes hearing. This appears to be an absolute unqualified requirement for personal service of a non-molestation order or occupation order.  We reported our experience that some courts took this literally, holding there was no discretion to allow for service by other means, whilst others went to the other extreme of making automatic orders for alternative methods of service.


No discretion to order alternative service?

Ultimately this boils down to a decision about the drafting of the rules. The question is whether, where a rule prescribes a particular method of service, is it thereby excluding the power to dispense with service or direct service by an alternative method?  Does it matter that some rules which prescribe methods of service expressly refer to the possibility of dispensing with service or alternative methods of service, but other rules do not?  Are the latter rules therefore implicitly abrogating these powers concerning service?

Although some argue otherwise, we take the view that applications for orders under Part 4 of the 1996 Act can be the subject of an order for alternative means of service.  In support of this argument:

- s 45(1) of the 1996 Act allows the court to make orders without the respondent having been given notice of the proceedings.  In considering whether to do so, the court must have regard to three matters, including at s 45(2)(c) 'whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved in effecting substituted service.'  The Act itself therefore assumes that the application could be served by what was then called substituted service, but is now called service by an alternative method;

- as we shall see, the historic version of the rule specifically referred to the court being able to order substituted service of the application;

- if there is no power to order an alternative method of service of the application, the presence of the signpost to rule 6.35 at the end of rule 10.3 is very hard to explain.

In contrast to this, rule 10.6(1) states that 'the applicant must, as soon as reasonably practicable, serve on the respondent personally ... a copy of the order.' We note that there is no signpost to rule 6.35 and service by alternative means in rule 10.6.


Must means must?

The argument therefore goes that rule 10.6(1) is in mandatory terms, brooks no exceptions and that rule 6.35 does not apply.  As we saw above, rule 6.1 provides that Part 6 applies to the service of documents, except where '(a) another Part, any other enactment or a practice direction makes a different provision.'  Rule 10.6(1) makes a different provision, therefore – so it is argued – FPR Part 6 does not apply to the service of orders under Part 4 of the 1996 Act, and so rule 6.35 is not available to allow for alternative methods of service of such orders.  To similar effect is that rule 6.19 (which is applied by rule 6.35) allows the court to authorise service by a method or at a place not otherwise permitted by this Part.  Because personal service of orders under Part 4 of the 1996 Act is mandated by a rule outside Part 6, it is argued that rule 6.35 cannot apply to authorise other means of service.

A similar but slightly different argument is based on the wording of rule 6.25.  Assume that FPR Part 6 does apply to the service of orders made under Part 4 of the 1996.  Rule 6.25(1) states 'Where required by another Part, any other enactment, a practice direction or court order, a document must be served personally.'  Rule 10.6(1) requires the order to be served personally, so by rule 6.25 it must be served personally, and this excludes the ability of the court to allow for alternative means of service under rule 6.35.


The counter argument: the court can direct service of orders under Part 4 by alternative means

We consider the above arguments are wrong.  The court can already order service of orders made under Part 4 of the 1996 Act other than by personal service.  The counter argument has two aspects:

-a proper construction of the rules as a whole;

-tracing the historic version of the rules and seeing how we ended up here.


The construction of the rules

We argue that all of these provisions need to be understood in their proper context.

-  rule 6.1 is stating that Part 6 of the FPR 2010 contains the general rules about service.  These general rules apply to the service of all documents within all proceedings, unless specific provision is made elsewhere.  However, that specific provision does not disapply the whole of Part 6. For instance, rule 6.25(3) contains a definition of personal service.  This applies to all cases.  The mere fact that there is a rule requiring personal service in another Part does not disapply this definition. Furthermore, if specific provision elsewhere did disapply Part 6, rule 10.3 would not specifically refer to rule 6.35.;

-  the general rules for service of documents other than divorce etc petitions are contained in rule 6.23.  In general, service can be effected by any of the methods set out in that rule.  But there are exceptions – for instance, you cannot serve on a party by sending a document to their home address if they have a solicitor on the record;

-  likewise, where a rule in another Part, such as rule 10.6(1), requires personal service, what rule 6.25 is doing is saying that the other permissible methods of service set out in rule 6.23 are not to be used. In other cases, all the options would be good service. For orders under Part 4 of the 1996 Act, only personal service is good service, subject to the court's powers under rules 6.35 and 6.36;

-  if, as they must, the rules in Part 6 about service apply even when a rule in another part requires personal service, then rules 6.35 and 6.36 apply even if a rule such as rule 10.6(1) requires personal service.  Personal service is the only method of good service unless a court makes an order under rule 6.35 or rule 6.36;

-  rule 6.35 is clear and in wide terms – it allows the court to order alternative service of 'any document in proceedings', and by referring back to rule 6.19 allows the court to order 'service by a method or at a place not otherwise permitted by this Part'.  Given that by rule 10.6(1) and 6.25(1), only personal service of orders under the 1996 Act is permitted, rule 6.35 allows for service by another method;

-  rule 6.36 is similarly broad in its application – it allows the court to dispense with the service of 'any document which is to be served in proceedings'.

In short, personal service is the default method of service for orders made under Part 4 of the 1996 Act.  Unless the court orders otherwise, there is no other method of service of an order made under this Part which will amount to good service. But the court retains its powers to order alternative methods of service and where ordered these shall be held to be means of valid service. The court also has the power to dispense with service altogether.

We suggest that any other conclusion would be more than a little odd, particularly where you consider other provisions in the FPR that could result in a respondent facing a custodial sentence.

We consider first applications for committal for contempt, an action that could be brought for breach of an injunction. On an application to commit, the court must be satisfied that the order which the applicant alleges the respondent to have breached was personally served on the respondent, but the court can dispense with this requirement under rule 37.8 and may make an order for service by an alternative method (r. 38.7(2)(b)).  This can be done retrospectively (s. 37.8(1) or prospectively (r. 37.8(2)). The parallel rule in the CPR is r. 81.8.

In the case of Benson v Richards [2002] All ER (D) 160, the Court of Appeal considered a committal order made in the context of the appellant's failure to remove a fence despite numerous mandatory injunctions requiring this to be done. The requirement for personal service of the injunction had not been complied with and instead the order had been sent to the respondent by first class post. The Court of Appeal noted the provisions of CCR 29 rule 1 which required an order or judgment to be personally served but allowed for enforcement where the court was satisfied that the respondent had had notice thereof 'whether by telephone, telegram or otherwise' (CCR 29 r. 1(6)(b)). The rules also allowed the court to dispense with the requirement for service where it considered it just to do so. The Court of Appeal noted that the court had an unfettered discretion to dispense with the requirement for personal service, even where it is exercised retrospectively (Davy International -v- Tazzyman [1997] 1 WLR 1256). The Court of Appeal emphasised that when considering the impact of various orders, the court is entitled to have regard to the realities of the matter and specifically to the purpose for which an order was designed to achieve. It being clear, notwithstanding that the respondent had not been personally served, that she was aware of the terms of the orders and the consequences of breach the order, the injunction was not to be defeated by a technicality regarding service. 'Any other view', the Court of Appeal held, would be 'an encouragement for a persistent offender to use technicalities to defeat the purpose of the orders'.
 
In the same way, it would not be in the interests of justice if a court order designed to protect a victim of abuse could be avoided where there was solid evidence from a process server that the respondent is in occupation of premises but was declining to come to the door to be personally served. In such circumstances, is it really the law that the court cannot order that service through the letter box is good service?  If the answer is yes, this is a licence to evade service and use a technicality to defeat the purpose of a protective order.

If the contrary interpretation is right, it means that any other provision requiring personal service removes the power to order service by alternative means  – see, e.g., CPR rule 65.3(5) relating to service of an application for an injunction under the Housing Act 1996 and rule 65.43(5) relating to service of an application for an injunction under the Anti-Social Behaviour Crime and Policing Act 2014.  In the family law context, there are similar provisions for applications for forced marriage protection orders and female genital mutilation protection orders under FPR rule 11.4(1) and orders made on such applications under FPR rule 11.7(3).

There are many provisions in the CPR which specify a method of service.  Some, but not all, make explicit provision for other methods of service by court order (eg CPR rule 81.15(5), (6)), but many do not, such as the ones noted above in Part 65.  Another example is CPR rule 62.18(7) about service of an order giving permission to enforce an arbitration award. Such an order must either be personally served or sent to the defendant's usual or last known place of residence or business. This specific rule disapplies the other methods of service that would otherwise be permitted under chapter 3 of CPR Part 6 (in rule 6.20), but does not, we suggest, prevent the exercise of the court's powers to order alternative methods of service or dispense with service.


The legislative history

The historic procedural rules show no intention on the part of the rule makers to remove the power to order alternative methods of service of orders made under Part 4 of the 1996 Act.

The Family Proceedings Rules 1991 applied to family proceedings but they were not a separate procedural code. By rule 1.3, they applied the County Court Rules and the Rules of the Supreme Court, with necessary modifications, to family proceedings in a County Court and in the High Court respectively. The power to order substituted service was contained in the CCR and RSC; e.g. CCR Ord 7, rule 8(1), which provided, 'If it appears to the court that it is impracticable for any reason to serve a document in any manner prescribed by these rules for the service of that document, the court may, upon an affidavit showing grounds, make an order (in this rule called "an order for substituted service") giving leave for such steps to be taken as the court directs to bring the document to the notice of the person to be served.' 

Rule 10.17 of FPR 1991 dealt with service of orders, requiring the proper officer to send any order made to any person affected by the order. There was no requirement personally to serve injunctions, but rule 10.17(4) cross-referred to the provisions of the CCR and RSC which dealt with enforcement by way of committal, providing that rule 10.17 was without prejudice to those rules which required personal service of orders if they were to be enforced by way of committal.

Part 4 of the Family Law Act 1996 was brought into force on 1 October 1997.  The Family Proceedings (Amendment No 3) Rules 1997 made the necessary changes to the FPR 1991 consequential on the Act coming into force.  New rule 3.8(6) required an 'on notice' application to be personally served on the respondent at least 2 days before the hearing. The court had the power under rule 3.8(7) to abridge time for service.  Rule 3.8(8) provided that 'where the applicant is acting in person, service of the application shall be effected by the court if the applicant so requests. This does not affect the court's power to order substituted service.' Rule 3.9(2) and (4) required personal service of orders made ex parte and inter partes respectively.  Rule 3.9(5) provided that 'Where the applicant is acting in person, service of a copy of any order made on the hearing of the application shall be effected by the court if the applicant so requests.'

There were two oddities about these rules. The first is that the express saving of the power to order substituted service was only in the rule about service of applications, and not of orders (we suspect this explains the signpost at the end of the current rule 10.3 and its absence at the end of rule 10.6). The second was this express saving followed the provision about requesting service by the court – the ability of an unrepresented applicant to request service by the court was not to affect the ability to order substituted service.  Odd as these provisions may have been, we argue that the FPR 1991 as amended in 1997 could not sensibly be construed as having been intended to prevent substituted service of orders made under Part 4 of the 1996 Act.  CCR Ord 7, rule 8(1) still applied when this legislation came into effect and made clear that if personal service was impracticable, the court could order substituted service.  If the amending rules had wanted to prevent substituted service of orders made under Part 4 of the 1996 Act, they ought to have made express provision to that effect, by providing that, eg, CCR Ord 7, rule 8 shall not apply to orders made under Part 4 of the 1996 Act.


Clarity at last

Notwithstanding our arguments above, while some judges have been making orders for alternative methods of service of orders made under Part 4 of the 1996 Act, others have been taking the view that there is no power to do so. As highlighted in our first article, there was also the issue of the CPS being unwilling to prosecute where an order had been served by way of alternative service. Faced with judicial divergence of opinion, the Family Procedure Rules Committee considered that urgent provision should be made to put beyond doubt the court's ability to order alternative methods of service of these orders.

During lockdown not only did the numbers of deaths as a result of domestic violence triple but distress calls to domestic abuse hotlines soared. The government's overall pandemic plan published on 3 March 2020 included no mention of domestic abuse or how lockdown might impact on the numbers of people needing to seek urgent protection. The consequent urgency brought about by the Coronavirus pandemic has meant that, instead of a rule amendment, the amendments are made by pilot provision and a Practice Direction making temporary changes to the rules.  Practice Direction 36U comes into force on 3 August 2020 and will cease to have effect on 3 May 2021.  Whilst in force:

- rule 10.3(1), which requires personal service of on notice applications on the respondent, is expressly made subject to any order made under rule 6.35 (alternative method of service) or rule 6.36 (dispensing with service); and

- rule 10.6(1), which requires personal service of non-molestation and occupation orders, is again made expressly subject to any order made under rules 6.35 (alternative method of service) and 6.36 (dispensing with service).

It has therefore finally been put beyond doubt that the court can order an alternative method of service of both applications and orders under Part 4 of the 1996 Act. This being welcome news for practitioners and victims where alternative service is the only means of bringing an order to the attention of an alleged perpetrator. The PD also makes clear:

- it does not have retrospective effect;

- but the rules as modified apply to all applications and orders under Part 4 of the 1996 Act, whether made or before the PD came into force;

- the making of the PD to alter the rules is not to be taken as any indication that the unmodified rules did not allow alternative methods of service of Part 4 applications and orders: 'Nothing in this practice direction affects any power to order alternative service, or dispense with service, of orders and applications made under Part 4 of the 1996 Act that may exist under the FPR as they apply prior to the coming into force of this practice direction.'


Conclusion

We suggest that this is a sensible stopgap. However, in due course, the rules will need to be properly amended to include the changes made in the PD to ensure that victims and their children can properly protected by orders designed with that purpose in mind in the long-term.

In the meantime, we would emphasise again that the CPS do not require evidence of personal service before deciding to prosecute for breaches of non-molestation orders.  The more evidence that can be obtained that the respondent is aware of the existence of the order, and of the terms of the order, the less likely it is that the CPS will decline to prosecute or that a defendant would be able to establish the 'reasonable excuse' defence. This might include evidence of a respondent having prior to, or at the time the order was sent, responded to messages, emails, WhatsApp messages sent to the number or email address to which the order was sent. Where possible include 'read receipts' with emails or make use of the 'blue ticks' function on WhatsApp providing evidence that a message has been read. It is clearly not in the interests of justice for individuals to be prosecuted or face civil actions for committal where they are unaware of the terms of an order. However, where it can be shown that a respondent has been made aware by way of alternative service it would be an encouragement to offenders to use the technicality of a lack of personal service to defeat the purpose for which the order was designed.

27/7/20