Chechi v Bashier & Ors

Part IV of the Family Law Act 1996 may protect relatives, including brothers, even where they live in separate homes, if the dispute is genuinely shaped by the family relationship. A non-molestation order is discretionary, although the court must consider all the circumstances, including the applicant’s health, safety and well-being. Where violence is proved and an order is made, a power of arrest will ordinarily be required under section 47(2), subject to the statutory exception. In an unusual case where that power could be abused, the court may refuse the non-molestation order and leave the parties to other remedies. A judge may decide the application on the papers where the applicant’s case is taken at its highest and oral evidence could not improve the applicant’s position.

The appellant sought protection under Part IV of the Family Law Act 1996 against his brother and six nephews during a violent family dispute originating in a land disagreement. A county court judge accepted that the statutory jurisdiction was available and that an order would probably be granted against the brother, but refused relief in the exercise of his discretion. He discharged the order against one nephew.

The appeal was heard after the violence had ceased. The appellant no longer pursued non-molestation relief against the nephew and accepted that an occupation order was unavailable. The principal issue was whether the judge had been entitled to refuse to entertain the application against the brother, particularly because a power of arrest would probably accompany any order.

1. Disposition. The appeal was dismissed. The existing orders against the other respondents remained effective and enforceable until 13 July 1999 unless otherwise discharged. There was no order as to costs save legal aid taxation.
2. Jurisdiction. The definition of a person associated with the respondent includes relatives, including brothers and nephews. The fact that the families lived in separate homes did not prevent the dispute from being genuinely within Part IV of the Family Law Act 1996.
3. Discretion under section 42. A non-molestation order is discretionary. Even where molestation and the required association are proved, the court may refuse relief after considering all the circumstances, including the need to secure the applicant’s health, safety and well-being. The decision in C v C [1998] 1 FLR 554 was accepted as showing that the procedure may be wholly unsuitable on particular facts, while the Act remained available to protect former spouses and former cohabitants.
4. Power of arrest. If a non-molestation order is made and the respondent has used or threatened violence, section 47(2) will, save in exceptional circumstances, require a power of arrest. The judge could properly regard that consequence as creating an unacceptable risk of abuse in this unusual reciprocal family conflict. Refusal of the non-molestation order did not prevent cross-undertakings, ordinary injunctions, or police intervention in the event of crime.
5. Procedure. The judge was entitled to decide the application without oral evidence. He had taken the appellant’s case at its highest, and the disputed evidence could not have placed the appellant in a stronger position than the case already accepted for the purpose of exercising discretion.

• Court of Appeal (Civil Division) [1999] EWCA Civ 962: dismissed the appeal. The appeal against the sixth respondent was dismissed by agreement, and the refusal of relief against the first respondent was upheld.
• Reading County Court: Judge Kenny refused to make or continue a non-molestation order against the first respondent and discharged the order against the sixth respondent.