Emergency Remedies in the Family Courts

Emergency Remedies in the Family Courts

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Format:
Looseleaf
ISBN:
978 0 85308 329 0
Editor:
Her Honour Nazreen Pearce, His Honour Nigel Fricker QC
Category:
Family

The standard reference work on emergency applications

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Recognised as the standard reference work on the subject, Emergency Remedies in the Family Courts gives practical guidance on how all emergency applications should be made and is available as an online or print subscription.

 

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For any family law crisis, Emergency Remedies in the Family Courts:

  • Identifies the appropriate remedy
  • Explains in step-by-step detail the requisite procedure
  • Provides model applications and pleadings
  • Clarifies the underlying law

 

Written and edited by an unrivalled team of experts, definitive advice is provided on all aspects of the law, together with guidance on over 70 urgent applications, including:

  • Application for non-molestation and/or occupation order under Family Law Act 1996, Part IV
  • Application for a freezing injunction, search orders and writ ne exeat regno
  • Authority to place a child in secure accommodation
  • Application for an emergency protection order
  • Application for authority under the inherent jurisdiction
  • Application for warrant of arrest under Family Law Act 1996, Pt IV, s 47(8)
  • Application for forced marriage protection orders
  • Application for judicial review
  • Urgent appeal against an order by magistrates for transfer of residence of a child
  • Application to extend or restrict publicity
  • Application in respect of mentally ill persons
  • Applications concerning domestic and international child abduction
  • The impact of the Hague Convention 1996 on the Protection of Children
  • Applications under TOLATA and MFP Act 1984 Part III
  • General introduction on procedure under the FPR 2010


Emergency Remedies in the Family Courts has a unique format comprising four parts:

  • Key Page - A quick reference guide to the appropriate application, who can apply and in which court the application must be made
  • Procedural Guide - Takes you step-by-step through each stage of an application and cross-refers you to the relevant rules of court
  • Precedents - Includes all documentation needed for each application
  • Law and Practice - These sections present unrivalled advice from a team of experts giving you a full understanding of the applicable law

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2014 Print Subscription Information
395.00 mainwork (includes mainland UK p&p (£12 overseas postage)
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Update 37 (March 2014)

This release contains updates to Divisions General; A (Applications under the Children Act 1989); B (Wardship and the inherent jurisdiction); C (Adoption); D (Child abduction: registration and enforcement); E (Personal protection and occupation of the family home); F (Protection of family property); G (Restriction of publicity); H (Mental and physical infirmity); and Appendix A10 (Practice Guidance).

In addition to the general updating to reflect legislative changes and case-law in this issue the precedents in all the divisions have been overhauled to incorporate the new style of orders where possible in accordance with the President’s House Rules. While the style and content of the new orders may be revised following consultation, the precedents will provide practitioners with an immediate template as a guide to work from.

In addition, all divisions have been revised and updated to take into account the latest developments. The following additions made are of particular note:

  • Division A: Provisions relating to fee remission; transfer of proceedings under BIIR Art 15; care placement outside the jurisdiction and requests by a member state for the return of a child and the Supreme Court’s decision in Re B (A Child) [2013] UKSC 33.
  • Division B: Commentary on the Supreme Court’s decision in Re A (A Child) [2013] UKSC 60 with reference to habitual residence; Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 6 in determining ‘best interests’ of a patient where a declaration is sought to withhold invasive treatment; KL (A Child) [2013] UKSC 75 concerning the use of the court’s inherent jurisdiction to order the return of a child applying the ‘best interests’ and ‘welfare’ principles and discussion on balancing the competing Arts 8 and 10 rights in restricting publication of information concerning a child’s care.
  • Division D: A new draft form of order for accepting transfer of public law proceedings pursuant to BIIR Art 15; a new section on Art 15, which deals with the procedure to be adopted when transfer of proceedings is proposed, the level of court to which request for transfer should be made, the criteria to be applied when determining whether transfer should be accepted and giving effect to the request for transfer. This division also deals in detail with the Supreme Court’s decisions in Re A (A Child) (above) and Re LC (Children) [2014] UKSC 1 and its impact on habitual residence. The impact of BIIR on the 1980 Hague Convention cases, factors to be taken into account when evaluating a child’s objection and a new section dealing with suspended return order, setting aside and reversal of a return order and costs in abduction cases are also included.
  • Division E: New orders in relation to FMPO; the use of the Children Act 1989 to obtain an exclusion or occupation order or other remedy and discussion of CW v SG [2013] EWHC 854 (Fam) and A v D [2013] EWHC 2963 (Fam).
  • Division F: Application and ramifications of the Supreme Court’s decision in Prest v Petrodel Resources Limited in recent cases and Mostyn J’s decision in UL v BK [2013] EWHC 1735 and its impact on applications for an injunction under s 37 of the Matrimonial Causes Act 1973 and ‘freezing orders’.
  • Division G: Updated precedents on permitting/restricting publication of information, discussion on media attendance in court proceedings, basis for restriction publication of information and the President’ determination to provide transparency.
  • Division H: Reference to the continued need for reliance on the court’s inherent jurisdiction to obtain protective orders not only in respect of the vulnerable but also those lacking capacity where neither the MHA 1983 nor the MCA 2005 applies.

A new section dealing with Legal Services Orders and costs allowances has been included in this issue and the General Division includes material on striking out a claim, litigation privilege and without prejudice and mediation immunity.

 

General Editor

Her Honour Nasreen Pearce

Founding Editor

His Honour Nigel Fricker QC

Contributors

David Burrows Solicitor Advocate, Bristol
District Judge Susan Jackson Central London County Court and Nominated Judge of the Court of Protection
David Salter Joint National Head of Family Law, Mills & Reeve, Leeds, Manchester, Cambridge, Norwich, Birmingham and London
Maggie Silver Family Legal Services Manager, North & East Surrey Magistrates’ Court
District Judge Jonathan Whybrow  Leicester County Court

Find out more about the scope of the work and how to use it

  • Applications under the Children Act 1989
  • Wardship and the Inherent Jurisdiction
  • Adoption
  • Child Abduction: Registration and Enforcement
  • Personal Protection and Occupation of the Family Home
  • Protection of Family Property
  • Restriction of Publicity
  • Protection of the Mentally and Physically Infirm
  • Appeals Including Stay of Execution and Bail
  • Civil Partnership
  • Appendices
  • Emergency Contact Details

"A very good tool for the busy family lawyer"
Solicitors Journal

Foreword

The courts exercising the family jurisdiction can only operate usefully if the lawyers and public who use them understand their procedures. The difference between an order which leads to an effective result and one which does not may depend, particularly in an emergency, upon making the correct application to the right court supported by the relevant information. All the courts, including those dealing with family law, are engaged in the process of streamlining the procedures with a view to saying delays in hearing cases, avoiding complexity and reducing unnecessary costs of litigation. Practitioners have to be well aware of the changes in the rules and practice directions of the courts.

The third edition of this invaluable book brings up to date the procedures of all the relevant family courts and continues to guide those using the book, step by step, by clear and easy to follow instructions. It is a must for all practitioners, whether their practice of family law is regular or infrequent.

The Right Hon Lady Justice Butler-Sloss DBE
January 1997

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Preface

The third edition of Emergency Remedies in the Family Courts, in loose-leaf form, is intended, like the previous editions, to meet the practical needs of family law practitioners. Among the helpful suggestions received from users and adopted in this edition is the change to loose-leaf. The continuing changes in family law and procedures, some by statute or rules of court and some evolutionary, make it difficult for courts and practitioners to keep up to date. Users of the book, including teachers of family law, have persuaded the authors and publishers that the book will be more useful if the latest developments are regularly incorporated.

The second edition of this book included a page headed ‘The Book and How to Use it’, which said ‘Experienced practitioners often guide a less experienced assistant or colleague by giving him or her a precedent to adapt and explaining the sequence of steps which need to be taken’. The Preface to the second edition said the book ‘is designed to enable a busy family law practitioner in private practice or employed by a local authority, easily to find a precedent for an emergency application to an appropriate court. Procedural guides facilitate pursuit of each application. Explanatory texts help to understand what can be achieved in an application and to justify what the practitoner seeks if he is questioned by the court. Best practice is the model’.
The goal of the third edition is to build on the strengths of the earlier editions, carrying forward the same practical approach.

The personal protection material (Division E) has been updated on the basis of the present law. The revisions for the new law and practice under the Family Law Act 1996 will be distributed in time for the commencement of Part IV of the Act, which is expected to be in October 1997.

The spectrum of experience of the team of authors is the source from which the book draws its strength and I thank each of them for their positive and committed contributions. My thanks are also due to David Burrows for providing the material for Appendix 1; Peter Harris, the Official Solicitor, for contributing Appendix 5; Ruth Few, Clerk of the Rules, Family Division, for helpful suggestions for improvements in ‘Procedure on appeal from magistrates’ in Division I; Mrs Melanie Perara for the application for displacement of nearest relative in Division H and to District Judge Roger Bird for reviewing some of the precedents.

Nigel Fricker
July 1997

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Extract

E[16.94] Personal protection and occupation of the family home (Update 33)

The dangers of making an occupation order on a without notice basis are well illustrated by Chalmers v Johns [1999] 1 FLR 392, CA. In fact, the decision at first instance was made not without notice but on an interim basis after hearing both parties, but that only reinforces the point. The judge ordered the husband to leave the home within seven days pending a final hearing of a residence application which was listed
some seven weeks ahead. On appeal, Thorpe LJ, referring to ouster orders, commented that:
‘a string of authorities in this court emphasise the draconian nature of such an order and that it should be restricted to exceptional cases. I do not myself think that the wider statutory provisions contained in the Family Law Act 1996 obliterate that authority. The order remains draconian, particularly in the
perception of the respondent. It remains an order that overrides proprietary rights and it seems to me that it is an order that is only justified in exceptional circumstances.’

The judge had misdirected herself in not going through the process contained in FLA 1996, s 33(6) and (7), and had never focused on the alternative nature of these adjourning subsections. The husband’s appeal was allowed.

In Dolan v Corby [2011] EWCA Civ 1664, however, the Court of Appeal, when dismissing an appeal by the respondent husband who had been excluded for six months from the home he had occupied with the applicant for 30 years, ruled that the exceptional circumstances of making an occupation order outlined in G v G and Chalmers v Johns were not confined to violent behaviour or the threat of violent behaviour. The important thing was for the judge to identify and weigh up all the relevant features. The judge’s decision to grant an occupation order was within the ambit of his discretion and sufficiently justified in the judgment.

----------------

Extract

Division E Personal protection and occupation of the family home > E[16.0] Law and Practice

Section 1: Introduction to Division E

Urgent remedies under Part IV of the Family Law Act 1996 and by injunctions against torts

Part IV of the Family Law Act 1996 (FLA 1996), implemented on 1 October 1997, provides a comprehensive code for applications for orders for personal protection from molestation by a member of the family or other 'associated person', and for occupation of a family home. The provisions relating to non-molestation orders and in particular the ability of the court to attach a power of arrest to such an order was substantially altered by the provisions of the Domestic Violence Crime and Victims Act 2004, which came into force on 1 July 2007. The result of these changes is that breach of a non-molestation order is now enforced through criminal proceedings in the magistrates' court and, as a result, the court no longer has the power to add a power of arrest to a non-molestation order. Applications may be brought either as 'free-standing' applications or ancillary within subsisting family proceedings. Division E deals primarily with emergency and urgent applications brought under the FLA 1996.

There remain cases of harassment and violence between persons who have or have had a personal relationship akin to a family relationship but who are not included in the class of associated persons eligible under the Act, and which may be remedied by injunctions made in actions founded in common law torts or the statutory tort of harassment under the Protection from Harassment Act 1997. Division E deals with torts at Applications E7 and E8 and in Section 4 of the Law and Practice at [16.48] .

[16.2] Domestic Violence Protection Notices and Orders to be piloted

From 30 June 2011, Domestic Violence Protection Orders (DVPOs) have been piloted for one year in three police force areas – West Mercia, Wiltshire and Greater Manchester Police. Victims have always been able to apply for civil remedies, which provide them with longer-term protection against domestic violence, but these can often take several days or weeks to apply for. The government is seeking to strengthen the protection available to victims by enabling the police to apply for a DVPO, which, if made by the magistrates' court, may prohibit the alleged perpetrator from contacting the victim or returning to the victim's address. These will initially last for 48 hours but can be extended for a minimum of 14 days and maximum of 28 days. The pilot is designed to protect victims in the short term and give them the breathing space to consider their next steps, including pursuing longer-term protection through a civil injunction application. For further information on the guidelines, consult the Guidance Document for Police Regional Pilot Schemes under ss 24–33 of the Crime and Security Act 2010 (June 2011–June 2012). The pilot closed on 30 June 2012 but the three police forces involved will continue to utilise the scheme while the pilot is evaluated.

[16.2A] Applications under Part IV of the Family Law Act 1996 may be 'free-standing' or made within family proceedings

Most applications for personal protection or regulation of occupation of the family home under the 1996 Act will be 'free-standing', but protection under the Act is also available on applications made within other family proceedings. In particular, sometimes an order under the powers in the FLA 1996 for protection of children is appropriate within proceedings under the Children Act 1989 (see Division A). The court may make a non-molestation order in other family proceedings whether or not a formal application has been made and, in appropriate cases, of its own motion (FLA 1996, s 42(2)).

 

 

Scope of the Work and How to Use it

Aim of the work

Experienced practitioners often guide a less experienced assistant or colleague by giving him or her a precedent to adapt and explaining the sequence of steps which need to be taken. When the practice and procedure is overhauled as under the FPR 2010 even the experienced need a helping hand. This publication aims to offer illustrative, fictional, precedents and procedural guides to demonstrate how to launch emergency applications under the new rules and practice directions using the appropriate prescribed forms and bring them to a satisfactory result, seeking remedies that are appropriate for the needs of the client. Further, the precedents, procedural guides and narrative explanations of law and practice give easy access to a practitioner, a judge or a magistrates’ clerk who needs quickly to check whether an application is proceeding in the right direction.

Structure of the illustrative precedents and procedural guides
Each set of precedents begins with a Key Page, which summarises the principal characteristics of an application and acts as an index to the set of precedents and the supporting narrative text. The procedural guide that follows summarises the sequence of steps to be taken, with references to the rules of court that apply.

Narrative texts of law and practice
The authors have sought to balance the need by practitioners for a book that affords explanation of most situations that are likely to arise in an emergency.

Gender
Throughout this publication, the gender used reflects the situation that occurs most commonly in practice. Unless the contrary appears, references to either the female or male gender are interchangeable.

Looseleaf updating
The looseleaf arrangement of Emergency Remedies in the Family Courts enables the book to be kept regularly up to date by the removal and insertion of updating pages. These are supplied at least twice per year in the form of Updates. Each Update is accompanied by filing instructions, which should be followed carefully to ensure that your book is fully and correctly updated. At the end of the binder you will find a Filing Record, which should be completed each time an Update has been filed. A Checklist of Pages is sent with each Update, which should be used to check that your copy of Emergency Remedies in the Family Courts is complete and has been correctly updated. The Checklist should then be filed at the back of the binder.

Arrangement of the work
The material is divided into 11 Divisions, each separated by plastic divider cards, as follows:
Gen General introduction on procedure
A Applications under the Children Act 1989
B Wardship and the inherent jurisdiction
C Adoption
D Child abduction: registration and enforcement
E Personal protection and occupation of the family home
F Protection of family property
G Restriction of publicity
H Protection of the mentally and physically infirm
I Appeals including stay of execution, bail and judicial review
J Civil partnership
K Emergency contact details.
The applications that are dealt with in each Division are listed in full both in the main contents to the work and at the start of each Division.

Paragraph numbering
The text is divided into numbered paragraphs. Cross-references to material in other Divisions are to paragraph numbers in those Divisions. For example, a reference to A[23.16] directs the reader to paragraph [23.16] in Division A. Where no letter appears, the reference is to a paragraph within the same Division.

Tables and index
The work contains tables of cases, statutes and statutory instruments. These are located behind the plastic divider card marked Tables.
A comprehensive index is included to facilitate easy access to the material in the book. This is to be found at the end of the binder.

Civil Procedure Rules 1998
The Civil Procedure Rules 1998 (CPR) were introduced on 26 April 1999. All civil proceedings are subject to these rules. ‘Family proceedings’, as defined by the rules (see below), are exempt from the CPR (CPR, r 2.1(2)) with the following exceptions:
(1) Costs rules under CPR Parts 43, 44, 47 and 48 apply to all family proceedings.
(2) CPR Part 52 (appeals to the Court of Appeal) applies to all family proceedings from 2 May 2000.

Rules in family proceedings
Subject to these exceptions, family proceedings are now covered by the FPR 2010 and the Practice Directions, which together provide a single procedural code, which applies to all levels of courts.
The Rules of the Supreme Court 1965 (RSC) (High Court) and the County Court Rules 1981 (CCR) (county courts), apply to family proceedings where they are specifically provided for in the FPR 2010 and where they are not inconsistent with the new rules.
Thus, for example, committal in the county court will still be covered by CCR Ord 29.

‘Family proceedings’: a definition
(1) Narrow definition
‘Family business’ is defined in the Matrimonial and Family Proceedings Act 1984, s 32 as ‘business of any description which in the High Court is for the time being assigned to the Family Division and to no other Division by or under section 61 of (and Schedule 1 to) the Senior Courts] Act 1981’ and family proceedings is defined as ‘proceedings which are family business’.
Senior Courts Act 1981, Sch 1 provides a narrow list of family proceedings, including matrimonial causes and various children proceedings.
(2) A wider definition
The table sets out the range of process, which come within the scope of the FPR 2010 and indicates those proceedings covered by the CPR and outside the narrow scope of the term ‘family proceedings’ as defined above.


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