Westcar v Westcar

A power of arrest attached to a protective injunction requires a finding, under section 47(ii) of the Family Law Act 1976, that the respondent has used or threatened violence against the applicant or a relevant child. Historic misconduct, old speculative psychiatric evidence and general unpredictability do not by themselves establish the required current risk. Where evidence supporting renewal is weak, the court must scrutinise it carefully and tailor the injunction to the protection justified. A suspended committal order may provide adequate protection; in that event, any injunction should not extend beyond the suspension period. The appeal was allowed to that limited extent.

This was an appeal from orders made by HHJ Hamilton QC in Bromley County Court on 25 October 2005. The judge renewed injunctions restraining the appellant from violence, intimidation, harassment and pestering, prohibited him from approaching the respondent’s home, and attached powers of arrest. The orders were to remain in force until 25 October 2006.

The evidence included an earlier breach resulting in a suspended committal sentence, old psychiatric evidence, and a disputed incident at a contact centre. There was no allegation of recent violence against the respondent. The central issues were whether the renewed protection and powers of arrest were justified, and the appropriate duration of any injunction.

The Court of Appeal allowed the appeal to the limited extent that the injunction was to terminate on 24 June 2006. Lord Justice Ward gave the leading judgment, and Sir Martin Nourse agreed with his reasoning and the proposed order.

1. Under section 47(ii) of the Family Law Act 1976, a power of arrest could be attached only if the court found that the respondent had used or threatened violence against the applicant or a relevant child. The evidence before the county court was extremely weak. There was no evidence of actual violence or any current threat of violence against the respondent. The statutory condition for the powers of arrest was therefore not established. (see para [12])
2. The county court was required to scrutinise the evidence carefully. The earlier injunction had been limited to one year. The breach involving letters had occurred during the earlier order and had resulted in a suspended committal sentence. The contact-centre incident was disputed, and the psychiatric evidence concerning aggression was old and speculative. General concerns about unpredictable or bizarre behaviour could not justify an injunction of excessive duration.
3. In the unusual circumstances, the suspended committal order provided adequate protection while its suspension operated. If a further injunction was necessary at all, it should have lasted only for that period. The court consequently terminated the injunction on 24 June 2006, rather than allowing it to continue until 25 October 2006. (see paras [13]-[14])

1. Court of Appeal (Civil Division): On 4 October 2006, the court allowed the appeal to the limited extent of terminating the injunction on 24 June 2006. The judgment is reported at [2006] EWCA Civ 1414.
2. Bromley County Court: On 25 October 2005, HHJ Hamilton QC granted renewed protective injunctions, with powers of arrest, continuing until 25 October 2006.