KY v DD

Without notice relief is exceptional and should be sought only where there is genuine urgency. The applicant must provide a balanced and particularised account of the relevant facts and law, disclose adverse matters, and establish a proper evidential basis. Information given orally requires close scrutiny, contemporaneous verification where possible, and prompt sworn confirmation. The court should address the return date, service, proportionality and the impact on the respondent’s rights. Practitioners must comply strictly with undertakings and keep a full record of the evidence and submissions placed before the court.

The applicant sought prospective wardship and without notice orders concerning a five-year-old child, including restrictions on the father’s contact and removal of the child from the jurisdiction. The application relied principally on an affidavit recording a threat made nine weeks earlier. Counsel also conveyed information about more recent threats, but that information related to a different case. The court made the orders sought, including a passport order, but discharged the passport order after the error was identified.

The judgment considered the proper procedure and evidential requirements for without notice applications in the Family Division.

1. Outcome. The passport order was discharged. On the later hearing, a prohibited steps order was made and the wardship was discharged. The judgment was given to provide guidance of wider application.
2. Without notice relief is exceptional. It should be sought only where there is genuine urgency. The applicant must make the fullest disclosure of relevant factual and legal matters and must provide a balanced, fair and particularised account of the events relied upon, including, where appropriate, the likely case of the respondent.
3. The application should be supported by appropriate evidence. Independent evidence should be provided where available and appropriate. The applicant must explain specifically why the application is made without notice, why the proposed notice period and return date are appropriate, and how service and implementation are intended to occur. These matters assist the court in assessing necessity and proportionality.
4. The court endorsed the procedural guidance in Re W (Ex Parte Orders) [2000] 2 FLR 927, Re S (Ex Parte Orders) [2001] 1 FLR 308 and B Borough Council v S & Anor [2006] EWHC 2584 (Fam). Orders should address prompt issue and service, disclosure of the evidential material relied upon, compliance with undertakings, and identification of the material read by the judge.
5. Information supplied orally must receive the closest scrutiny. If the applicant is not present to verify it, a contemporaneous note of instructions should be produced or a short adjournment considered. Any additional oral information should be confirmed by sworn evidence within a very short period. Failure to do so may result in an order being executed without proper grounds and may seriously infringe the respondent’s rights.
6. Those advising on a without notice application must rigorously assess whether it is justified and identify its evidential basis. Practitioners must also keep full records of what was shown and said to the court, including the hearing times.