W (Minors), Re

Ex parte relief in family proceedings should remain exceptional because it departs from the fundamental right to be heard. It is justified only where there is a grave risk of harm, and it should be followed by the earliest possible inter partes hearing. A normal period specified in higher-court guidance, such as 14 days, is the proper starting point, although the facts may justify a longer period. Lower courts must faithfully follow such guidance until it is amended by the issuing authority. An order which lasts substantially longer without a specified return date is improper.

The father applied in the High Court for orders locating two children, restricting their removal from England and Wales, and preventing the issue of passports. The High Court proceedings followed the mother’s departure to a refuge and the children were subsequently located. Separate non-molestation proceedings had been issued by the mother in the Family Court at Bow, where an ex parte order was made for one year without a specified return date. The father also issued child-arrangements proceedings in the Central Family Court.

The central issues were the appropriate final orders in the High Court proceedings and the validity and management of the ex parte non-molestation proceedings.

1. Jurisdiction and final orders. The Family Court could exercise the powers relating to permission to apply under section 10 of the Children Act 1989 and prohibited steps orders. The High Court alone had power to make a location order and to request a foreign mission not to issue passports. The High Court proceedings had therefore been appropriately issued, but had run their course once the children were located.
2. Ex parte relief. Ex parte relief of this nature must be the exception, since it departs from the fundamental principle that judicial decisions should be made after both sides have been heard. Departure is justified only in circumstances involving a grave risk of harm. Where it occurs, the order must be reviewed at the earliest possible inter partes hearing.
3. Duration and return date. The 14-day period specified as the normal duration in the President’s Practice Guidance was a proper starting point. A longer period could be justified by the facts, potentially substantially longer, but the court must explain that departure. The order must state a specified return date, normally coinciding with expiry. This was the proper interpretation of section 45(3) of the Family Law Act 1996.
4. Binding guidance. Guidance from the higher courts on the exercise of a statutory discretion is binding on lower courts: Willers v Joyce (No 2) [2016] 3 WLR 534. The lower courts had to follow the Guidance until it was amended by the President.
5. The one-year non-molestation order, which lacked a specified return date, was highly improper. The proceedings were transferred to the Central Family Court, where an early hearing was directed for reconsideration of the injunction and for the father’s child-arrangements application. The High Court made final protective and passport-related orders in relation to A.