Re B-J (Power of Arrest)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE PETER GIBSON |
| Judgment Date | 27 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0627-3 |
| Docket Number | Case No: FC2/2000/6113/B2 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 2000 |
[2000] EWCA Civ J0627-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL
REGISTRY FAMILY DIVISION
His Honour Judge Callman
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Peter Gibson
Lady Justice Hale
Case No: FC2/2000/6113/B2
PTA/1999/6936/B1
Mr. Geoffrey Kingscote (instructed by Messrs Meaby and Co. of Camberwell Green for the Appellant)
Miss Rosalind Carne (instructed by Messrs Powell and Partners of Kilburn for the Respondent)
This case raises the simple but important question of whether a power of arrest attached to a non-molestation or occupation order made under Part IV of the Family Law Act 1996 may last for a shorter period than the order to which it is attached.
The relevant law
Before the Family Law Act 1996 came into force, powers of arrest could in certain circumstances be attached to non-molestation and ouster injunctions under section 2(1) of the Domestic Violence and Matrimonial Proceedings Act 1976. This read:
'Where, on an application by a party to a marriage, a judge grants an injunction containing a provision (in whatever terms) —
(a) restraining the other party to the marriage from using violence against the applicant, or
(b) restraining the other party from using violence against a child living with the applicant, or
(c) excluding the other party from the matrimonial home or from a specified area in which the matrimonial home is included,
the judge may, if he is satisfied that the other party has caused actual bodily harm to the applicant or, as the case may be, to the child concerned and considers that he is likely to do so again, attach a power of arrest to the injunction.'
Magistrates' courts had a similar but not identical power under section 18(1) of the Domestic Proceedings and Magistrates' Courts Act 1978.
There was nothing in either section expressly empowering the court to attach a power of arrest for a shorter term than the injunction or order to which it was attached. It was, however, a discretionary power, which the courts had said was to be used sparingly (see, eg, Lewis v Lewis [1978] Fam 60). A Practice Note advised that 'unless a judge is satisfied that a longer period is necessary in a particular case, the period should not exceed three months' (see Practice Note (Domestic Violence: Power of Arrest) [1981] 1 WLR 27).
Both powers were replaced by section 47 of the Family Law Act 1996. Part IV of the 1996 Act was largely the outcome of the consultations and recommendations of the Law Commission (see Working Paper No 113, Domestic Violence and Occupation of the Family Home, 1989; Law Com No 207, Report on Domestic Violence and Occupation of the Family Home, 1992). There was considerable concern that domestic violence was not being taken seriously enough by the authorities, including the courts, and that powers of arrest were not being used as often as they should, given the delays and difficulties in enforcing injunctions or orders in the usual way. The Women's National Commission had proposed that injunctions against violence should normally carry a power of arrest, unless this could be shown to be unnecessary (see Violence against Women, Report of an ad hoc Working Group, 1985, para 113).
The Law Commission Working Paper (para 6.64) suggested that the court might be able to attach a power of arrest to any order, provided that the respondent had in fact caused actual bodily harm to the victim and the order specified precisely which breaches of the order would give rise to the power, unless in all the circumstances it appeared that the victim would be adequately protected without it. The response (Report, Law Com No 207, para 5.12) revealed 'a considerable diversity of views' but three main options: some favoured retaining the then approach, in which powers of arrest were relatively exceptional; others would allow them in any case where there was a risk of future harm, 'but a few feared that if injunctions normally carried a power of arrest, there might be an increased reluctance to grant them'; but a 'third sizeable and varied group of respondents [including the Magistrates' Association, Women's Aid Federation, Rights of Women, the Institute of Legal Executives, the Children's Legal Centre, the Association of Women Solicitors, the Law Society, the Family Law Bar Association, the National Council for One Parent Families, the Association of Chief Police Officers and the Metropolitan Police] suggested that powers of arrest should generally be attached in cases where there had been violence or threatened violence.'
The Commission's conclusion (Report, Law Com No 207, para 5.13) was this:
'We were impressed by the weight of informed opinion supporting this third main alternative, … There are a number of advantages in this. A power of arrest is seen as a simple, immediate and inexpensive means of enforcement which underlines the seriousness of the breach of the offending party. It was felt that threatened violence should be included because it is wrong in principle that women and children should have to wait to be injured before the law can offer effective protection. However, it would be wrong to provide for an absolutely automatic power of arrest as there may well be some cases in which it is inappropriate.'
The relevant provision is now contained in section 47(2) of the Family Law Act 1996, which is in virtually identical terms to that recommended by the Law Commission (see clause 15(2) of the draft Bill annexed to Law Com No 207):
'If —
(a) the court makes a relevant order; and
(b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,
it shall attach a power of arrest to one or more provisions of the order unless the court is satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.'
By section 47(1) a 'relevant order' means an occupation order or a non molestation order.
However, the Law Commission also recommended (Report, Law Com No 207, para 5.14) that the court should not be under any obligation to attach a power of arrest to an order made without notice to the other party, for which the criteria should be more stringent. Section 47(3) of the 1996 Act again (with one exception immaterial for this purpose) mirrors the wording recommended by the Law Commission (see clause 15(3) of the draft Bill):
'Subsection (2) does not apply in any case where the relevant order is made by virtue of section 45(1) [ie without notice to the other party], but in such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it -
(a) that the respondent has used or threatened violence against the applicant or a relevant child; and
(b) that there is a risk of significant harm to the applicant or child, attributable to the conduct of the respondent, if the power of arrest is not attached to those provisions immediately.'
The Law Commission's Report and Bill made no reference to the duration of powers of arrest. It is clear that major changes to the courts' powers, and in particular their powers of enforcement were intended, so that earlier authority would be of little if any assistance. On the other hand, the Commission left it open whether a power of arrest might be attached for a fixed period which was different from the duration of the order.
The Family Homes and Domestic Violence Bill was first introduced in the House of Lords in the session 1994 to 1995. It was referred to a Special Public Committee under the chairmanship of Lord Brightman; this was a new procedure specially designed for law reform measures; the Committee took written and oral evidence from a wide range of interested organisations and individuals; several amendments were made as a result. The Bill fell at the end of the 1994–95 session, but was immediately reintroduced (with some further amendments) in the next, as part of the Family Law Bill, and became Part IV of the 1996 Act.
Among the amendments made in the Special Public Committee was what became section 47(4) of the 1996 Act:
'If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.'
Section 47(5) continued:
'Any period specified for the purpose of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the relevant order.'
The power to vary or discharge orders is contained in section 49 of the Act, to which it will be necessary to return.
Thus a distinction was introduced between the discretionary power to attach powers of arrest to orders not made on notice under section 47(3) and the mandatory duty to attach a power of arrest under section 47(2), to which the express provisions of section 47(4) and (5) did not apply. In M v W (Non-Molestation Order: Duration) [2000] 1 FLR 108, Cazalet J held that the consequence was that the court could not impose a power of arrest under section 47(2) which had a shorter duration than the order to which it was attached.
The facts of this case
The orders in this case were made by His Honour Judge Callman on 22 June 1999 in the county court jurisdiction of the Principal Registry of the Family Division as a result of an unmarried father's application for parental responsibility for his daughter Cassie, born on 12 December 1989.
Her parents had lived together on and off, but never set up permanent home...
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