One of the remedies available to individuals suffering domestic violence is to apply for a protective injunction from the court under the Family Law Act 1996, taking the form of “non-molestation” and “occupation” orders. Applications can be made “on notice” (i.e. after informing the person you are seeking the order against) or “without notice”(i.e. without telling the person you are seeking the order against).
In a recent published judgment (DS v AC), Mrs Justice Lieven warned about the risks of applying for domestic violence injunctions on a “without notice basis”. The judge highlighted there has been a growth in applications for domestic violence since the Covid pandemic, stating that too many applications were being made on a without notice basis.
There are strict criteria for making an application without notice, which in the judge’s words should only be made in exceptional circumstances and with proper consideration for the rights of the absent party. Where applications are made without notice inappropriately, they risk being rejected. This can create delay, stress for all involved and wasted legal costs.
The decision as to whether to make a domestic violence application and whether to do so on or without notice is something which family law solicitors regularly advise on. More often than not, individuals considering domestic violence applications will likely need to give notice to the other party when doing so.
The statistics are not clear on the point, though there is a concern as to whether without notice applications are being inappropriately, and disproportionately, applied for by individuals without the benefit of legal representation. Indeed in the case of DS v AC, the applicant was a litigant-in-person (i.e. without legal representation) and the judge expressed sympathy with the fact she, quite understandably, was not familiar with the law.
It is not known what (if any) legal advice the applicant sought in DS v AC, but it must be wondered whether some legal advice early on could have resulted in a different decision to pursue the application in the first place and/or a different outcome. This goes to a wider issuer within family law as to the availability of affordable legal advice and highlights the clear benefits of seeking legal advice at an early stage where at all possible.
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