Procedure for an application for an occupation order


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Procedure for an application for an occupation order


Applications

The procedure for an application for an occupation order under Part IV of the Family Law Act 1996 (FLA 1996) is governed by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 10 and the supporting practice direction FPR 2010, PD 10A.
References:

FPR 2010, SI 2010/2955, Pt 10

Under FPR 2010 there has been a change in terminology in family proceedings. Orders that were formerly known as ex parte orders are now referred to as without notice orders and applications for leave are referred to as applications for permission.

The application is made in Form FL401, which must be supported by a witness statement verified by a statement of truth. The statement of truth does not have to be sworn. The form of the statement of truth verifying a witness statement should be as follows: 'I believe that the facts stated in this witness statement are true.'
References:

FPR 2010, SI 2010/2955, 10.2, 17.2

FPR 2010, PD 17A, para 2.1

From 22 April 2014 there is no longer a fee payable when an application is made for an occupation order.

The applicant should prepare a draft order in Form FL404a or using the Occupation order omnibus. See: Drafting the order below.
References:

Occupation order omnibus

The application should be made to the Family Court. See Practice Note: The single Family Court.
Funding—legal aid

Guidance from the Ministry of Justice (MoJ) to help victims of domestic violence find out if they are eligible for legal aid can be found on the GOV.UK website here.

In order to qualify for legal aid to make an application for an occupation order evidence must be provided of domestic violence. There are useful template letters from the MoJ:


  1. that can be used by applicants to ask the courts, the police and the medical profession for evidence: Sample letters to get evidence of domestic violence

  2. for use by professionals to reply to a request to give evidence of domestic violence: Legal aid cases of domestic violence and child abuse: letters for professionals

Applicants and criteria to be applied

For further information about who may apply for an occupation order and the criteria that the court must apply to such an application see Practice Note: Occupation orders.

Without notice (ex parte) applications

The court may make an order without notice where it considers it is just and convenient.
References:

FLA 1996, s 45(1)

In determining whether to exercise its powers the court shall have regard to the circumstances of the case including:
References:

FLA 1996, s 45(2)


  1. any risk of significant harm to the applicant or relevant child, attributable to the conduct of the respondent if the order is not made immediately

  2. whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately

  3. whether there is reason to believe that the respondent is aware of the proceedings and is deliberately evading service, and that the applicant or child will be seriously prejudiced by the delay involved in achieving service


References:

FLA 1996, s 45(2)

The applicant must file evidence in support of the application stating the reasons why the application is made without notice.
References:

FPR 2010, SI 2010/2955, 10.2(4)

The general principles that should apply to a without notice application made under FLA 1996, Pt IV were helpfully summarised by Mostyn J in JM v CZ [2014] EWHC 1125 (Fam) in which he referred to the principles set out in his decision in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam), [2013] All ER (D) 277 (Jun), which he said were equally applicable to proceedings under FLA 1996, Pt IV.

In UL v BK Mostyn J held that an application for ex parte relief can only be justified where the matter was one of 'exceptional urgency' and that, at the very least, short informal notice must be given to the respondent unless it is essential that they are not made aware of the application. No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act. Cases where no notice at all can be justified are very rare indeed. The order should record on its face the reason why it was satisfied that no or short notice was given. Where no notice, or short informal notice, is given the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order.

Where an order is made without notice the court must afford the respondent the opportunity to make full representations as soon as is just and convenient.
References:

FLA 1996, s 45(3)

Horgan v Horgan [2002] All ER (D) 95 (Sep)

The courts approach without notice applications for non-molestation and occupation orders differently. It is recognised that the respondent has no legal right to inflict or threaten violence. Therefore, an without notice non-molestation order does not infringe the respondent’s legal rights. An occupation order, on the other hand, overrides the respondent’s proprietary rights. Therefore, the courts have stated that exclusion orders should seldom be granted without notice (Masich v Masich (1977) 7 Fam Law 245). This still applies to occupation orders.
References:

G v G (Exclusion Order) [1990] FCR 572

The President of the Family Division has issued Practice Guidance: Family Court—Duration of ex parte (without notice) orders [2014] 3 FCR 402 regarding the duration of ex parte (without notice) orders. The guidance sets out six principles that must be complied with when making an ex parte (without notice) order:
References:

Practice Guidance: Family Court—Duration of ex parte (without notice) orders [2014] 3 FCR 402


  1. an ex parte (without notice) injunctive order must never be made without limit of time—there must be a fixed end date

  2. it is not sufficient merely to specify a return day—the order must specify on its face and in clear terms precisely when it expires (eg 4.30 pm on 19 November 2014)

  3. the duration of the order should not normally exceed 14 days

  4. the order must also specify the date, time and place of the hearing on the return day—it is usually convenient for this date to coincide with the expiry date of the order (eg list the return day for 10.30 am on 19 November 2014 and specify that the order expires at 4.30 pm on 19 November 2014)

  5. FPR 2010, SI 2010/2955, 18.10(3) provides that the order 'must contain a statement of the right to make an application to set aside or vary the order under FPR 2010, SI 2010/2955, 18.11'—the phrase 'liberty to apply on 24 hours’ notice' is not sufficient for this purpose; the order must spell out that the respondent is entitled, without waiting for the return day, to apply on notice (the details of which and the need for which must be set out on the face of the order) to set aside or vary the order


References:

FPR 2010, SI 2010/2955, 18.10(3), 18.11

  1. if the respondent does apply to set aside or vary the order the court must list the application as a matter or urgency, within a matter of days at most

The guidance suggests that in cases where the respondent neither applies to set aside or vary the order nor attends the hearing on the return day the court may decide to proceed in the way suggested by Mostyn J in JM v CZ [2014] EWHC 1125 (Fam), namely that the return date should be listed, say, 14 days after the initial ex parte (without notice) order was made but that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether they in fact wish to attend on the return date and to argue for variation or discharge of the order; and that if the respondent fails to write to the court within that period, it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.
References:

Practice Guidance: Family Court—Duration of ex parte (without notice) orders [2014] 3 FCR 402


Service of application

The general rules in relation to service are contained in FPR 2010, SI 2010/2955, Pt 6. See Practice Note: Service of documents in family proceedings other than applications for matrimonial and civil partnership orders in the United Kingdom.

When an application is made on notice the applicant must serve:
References:

FPR 2010, SI 2010/2955, 10.3(1)


  1. the application

  2. any statement in support

  3. notice of any hearing or directions appointment in Form FL402

on the respondent personally not less than two business days prior to the hearing or within such period as the court may direct.

If the application is made without notice the respondent must be personally served with:
References:

FPR 2010, SI 2010/2955, 10.6


  1. a copy of the order made

  2. a copy of the application together with any statement supporting it; and

  3. notice of any hearing or directions appointment in Form FL402

  4. where the order is made by lay justices, a copy of the written record of the reasons for the court’s decision.

Where the applicant is acting in person they may ask the court to serve the respondent.
References:

FPR 2010, SI 2010/2955, 10.3(2)

The applicant must file a certificate of service in Form FL415 after serving the application. FPR 2010 prescribe the details that must be stated in the certificate of service. The certificate of service must be filed at or before the earlier of:
References:

FPR 2010, SI 2010/2955, 6.37, 10.3(4)


  1. the first directions appointment in; or

  2. the hearing of

the proceedings unless a rule or practice direction provides otherwise.

The certificate of service must to contain a statement of truth.
References:

FPR 2010, SI 2010/2955, 17.2

The court has power to abridge time for service.
References:

FPR 2010, SI 2010/2955, 10.3(1)

The court has power to order service by an alternative method (substituted service).
References:

FPR 2010, SI 2010/2955, 6.35

 If the application is for an occupation order under FLA 1996, s 33, s 35 or s 36, the applicant must serve on the mortgagee and any landlord of the dwelling-house in question:
References:

FPR 2010, SI 2010/2955, 10.3(3)


  1. a copy of the application; and

  2. notice of the right to make representations in writing or orally at any hearing

Guidance has been issued by the Domestic Abuse Committee of the Family Justice Council which sets out an agreed protocol for the service of non-molestation orders and injunctions made by the court to protect people from violence and harassment. The protocol sets out the requirements in relation to the statement or proof of service and in relation to the way in which the respondent is identified. When instructing a process server to serve an order with a power of arrest their attention should be drawn to the contents of the protocol.
References:

Domestic Abuse Committee of the Family Justice Council—Protocol for process servers: Non-molestation orders


Tenancies

If the tenancy is either in the respondent’s name or in joint names, the other party may be able to frustrate the application by surrendering the tenancy. At the outset of proceedings, consideration should be given to applying for an injunction preventing the other party from ending the tenancy by notice to quit or surrender.
References:

Bater v Greenwich LBC [1999] 4 All ER 944, [1999] 3 FCR 254


Drafting the order

Formerly any order made at a hearing was issued in FL404. Form FL404 is still available, however, although it has only been released in its draft form, some courts are already adopting the Occupation order omnibus that has been issued for consultation by the Family Orders Project team, led by Mostyn J, on 13 October 2014. See Practice Note: Draft standard orders. It is advisable to check the practice in your local court.
References:

Occupation order omnibus

A penal notice is not automatically endorsed on an order. Where a court so directs, the order should incorporate a notice as to the consequences of disobedience.

The terms of an order must be precise and capable of being understood.

Form FL404 provides some specimen clauses which are intended to assist as does the Occupation order omnibus. The clauses should be adapted to the circumstances of the case. Where the respondent is excluded from an area, particular care is required to specify whether such an order is part of an occupation or non-molestation order.

In relation to orders made without notice the guidance from the President, Practice Guidance: Family Court—Duration of ex parte (without notice) orders [2014] 3 FCR 402, contains suggested wording for such an order (which is incorporated in the Occupation order omnibus):
References:

Practice Guidance: Family Court—Duration of ex parte (without notice) orders [2014] 3 FCR 402


  1. '1 Paragraph(s) [insert] of this order shall be effective against the respondent [insert names] once it is personally served on [him]/[her] [and/or] once [he]/[she] is made aware of the terms of this order whether by personal service or otherwise.

  2. 2 Paragraph(s) [insert] of this order shall last until [insert date and time] unless it is set aside or varied before then by an order of the court.

  3. 3 The case is listed for a further hearing in the Family Court sitting at [insert place] on [insert date] ("the return date"), time estimate: [insert time]. At the hearing on the return date the court will reconsider the application and decide whether the order should continue. If the respondent does not attend on the date and at the time shown the court may make an order in [his]/[her] absence.

  4. 4 The respondent has the right to apply to the court at any time, and without waiting until the return date, to set aside or vary this order. [Insert if appropriate: The respondent must give [insert hours/days] [written] notice of the application to the [applicant]/[applicant’s solicitors].]

  5. 5 If the respondent intends to rely on any evidence in support of [his]/[her] application to set aside or vary this order, or intends to rely on any evidence to oppose the continuation of the order at the hearing on the return date, the substance of the evidence must be provided in writing to the [applicant]/[applicant’s solicitors] in advance.

[Add if appropriate]


  1. 6 If the respondent intends to oppose the continuation of the order on the return day [he]/[she] must notify the court [in writing or by email] no later than [insert date and time] that [he]/[she] intends to attend the hearing on the return day and to oppose the continuation of the order. If the respondent does not notify the court then the court may, if appropriate, make an order dispensing with the need for any attendance by the [applicant]/[applicant’s solicitors] on the return day and may, if appropriate, on the return day make an order extending the injunction.'


Service of an order

An order made at an on notice hearing shall be served on the respondent personally by the applicant as soon as reasonably practicable.
References:

FPR 2010, SI 2010/2955, 10.6(1)

See Practice Note: Service of documents in family proceedings other than applications for matrimonial and civil partnership orders in the United Kingdom.

Where an order is made without notice, a copy of the order, application and statement in support shall be served on the respondent personally.
References:

FPR 2010, SI 2010/2955, 10.6(1)

Where the applicant is acting in person they may request the court office to serve the application on the respondent.
References:

FPR 2010, SI 2010/2955, 10.3(2)

It is essential that service is effected correctly on the person against whom the order has been made, and that the applicant can provide proof of service in the correct form as a failure to do so may mean that the court is unable to enforce an order and an order that is not enforceable will not protect the applicant.

An occupation order that directs an act to be done by a specified time cannot be enforced unless it is served before the time within which the act is to be done has expired.
References:

FPR 2010, SI 2010/2955, 37.5

Guidance has been issued by the Domestic Abuse Committee of the Family Justice Council which sets out an agreed protocol for the service of non-molestation orders and injunctions made by the court to protect people from violence and harassment. The protocol sets out the requirements in relation to the statement or proof of service and in relation to the way in which the respondent is identified. When instructing a process server to serve an order with a power of arrest their attention should be drawn to the contents of the protocol.
References:

Domestic Abuse Committee of the Family Justice Council—Protocol for process servers: Non-molestation orders

A copy of an application for an occupation order under FLA 1996, s 33, s 35 or s 36 shall be served by the applicant by first-class post in Form FL416 on the mortgagee or landlord of the dwelling-house in question.
References:

FPR 2010, SI 2010/2955, 10.6(3)


Variation and discharge

An order may be varied or discharged by the court on application on notice by either party. There are no factors prescribed for the court to consider on an application to vary or discharge an order. However, it is suggested that the court should consider any change in circumstances since the order was made and apply the statutory criteria to the fresh circumstances and the extent to which parties have complied with orders under FLA 1996, s 40.

In relation to an application to vary or discharge an order made in proceedings for an occupation order, no fee is payable where the proceedings are issued by the person who commenced the proceedings.
References:

SI 2015/687


Power of arrest

If the court makes an occupation order and it appears to the court that the respondent has used or threatened violence against the applicant or any relevant child, it shall attach a power of arrest unless it is satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.
References:

FLA 1996, s 47(2)

Where an application is made without notice, a power of arrest will not be attached unless it appears that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent if the power of arrest is not attached immediately. When doing so, the court can provide that the power is to have effect for a shorter period than the other provisions of the order.
References:

FLA 1996, s 47(3)–(4)

The clauses to which the power is attached must be set out on Form FL406.

A copy of Form FL406 must be delivered to the police station for the applicant’s address or of such other police station as the court may specify. This must be accompanied by a statement showing that the respondent has been served with the order or informed of its terms (whether by being present at court when the order was made or by telephone or otherwise). The documentation must be delivered by the applicant or a court office where the order was served by the court because the applicant is acting in person or the order was made of the courts own initiative.
References:

FPR 2010, SI 2010/2955, 10.6(2), 10.10

The significance is that a constable may arrest without warrant a person whom they have reasonable cause for suspecting to be in breach of an order to which the power has been attached. Any person arrested must be brought before the relevant judicial authority within 24 hours.
References:

FLA 1996, s 47(6)

Where no power of arrest has been attached, the applicant can apply for a warrant of arrest.
References:

FLA 1996, s 47(8)


Undertakings

In any case where the court has power to make an occupation order the court may accept an undertaking from any party to proceedings.
References:

FLA 1996, s 46(1)

The court shall not accept an undertaking under FLA 1996, s 46(1) instead of making an occupation order in any case where, apart from this section, a power of arrest would be attached to the order.
References:

FLA 1996, s 46(1)

An undertaking is enforceable as a contempt of court punishable by committal proceedings. Breach of an undertaking is not a criminal offence.
References:

FLA 1996, s 46(4)

An undertaking is recorded in Form N117 and must be explained to the respondent by the judge. The form of undertaking must be endorsed with a notice that sets out the consequence of failure to comply with the undertaking in the words prescribed in FPR 2010, PD 37A:
References:

FPR 2010, PD 37A
'You may be held to be in contempt of court and imprisoned or fined, or your assets may be seized, if you break the promises that you have given to the court.'
The respondent must make a signed statement  to the effect that they understand the terms of the undertaking and the consequences of failure to comply with it, in the wording prescribed by PD 37A, (or in words to substantially the same effect:

'I understand the undertaking that I have given and that if I break any of my promises to the court I may be sent to prison, or fined, or my assets may be seized, for contempt of court.'
The judge is responsible for:


  1. approving the terms of the undertaking

  2. ensuring that the giver understands what has been promised and the consequences of breach

  3. considering whether the signature should be included on the form in order to avoid argument about what happened when the undertaking was given

  4. in the rare circumstances where an undertaking is given by an advocate, in the absence of the giver, ensuring that the advocate has been given specific instructions to give the undertaking and that the giver understands the consequences of breach


Recognition and enforcement of protection measures

From 11 January 2015 a new Part 38 was inserted into FPR 2010 to make provision in relation to proceedings under Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters (Protection Measures Regulation). The Protection Measures Regulation enables an order providing protection from domestic abuse in one EU Member State to be recognised and enforced in another in the event that the person who is afforded protection under the order or injunction (the protected person) travels to another Member State.
References:

FPR 2010, SI 2010/2955, Pt 38

The term ‘protection measures’ covers any protection measure included in any of:


  1. a non-molestation order made under FLA 1996, s 42

  2. an occupation order made under any of FLA 1996, s 33, 35, 36, 37 or 38

  3. an undertaking accepted by the court under FLA 1996, s 46

  4. an order that has been varied under FLA 1996, s 49

  5. a forced marriage protection order made under FLA 1996, s 63A

  6. an undertaking accepted by the court under FLA 1996, s 63E

  7. an order that has been varied under FLA 1996, s 63G

  8. any other order of the Family Court or the High Court in family proceedings

  9. any other undertaking accepted by the Family Court or the High Court in family proceedings, or

  10. an injunction issued for the purpose mentioned in section 3(3)(a) of the Protection from Harassment Act 1997

For further information see Practice Note: Recognition and enforcement of protection measures.

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