Manjra v Shaikh

A non-molestation order should ordinarily specify an end date. An indefinite order remains legally permissible where the facts justify continuing protection, but its duration must be proportionate to the risk. On an application to discharge an existing order, the question is whether continued judicial intervention is necessary to protect the applicant, not whether continuation inconveniences the respondent. Where circumstances have materially changed and there is no evidential basis for ongoing protection, the order should be discharged. Fresh allegations raised on appeal require evidence and an opportunity for the opposing party to respond.

The appellant challenged the refusal of Her Honour Judge Hughes QC to discharge a non-molestation order made in 2016 under section 42 of the Family Law Act 1996. The original order had no end date, and the parties had lived together for more than two years without any alleged breach. By January 2020 the parties were divorced, the respondent had left the former matrimonial home, and the occupation order was discharged. The judge nevertheless continued the non-molestation order indefinitely.

The appeal concerned the proper approach to duration, discharge and continuation of a non-molestation order, and the procedural consequences of new allegations of continuing intimidation raised on appeal.

1. Appeal allowed. The judge was entitled initially to determine the discharge application summarily. Family proceedings lie on a spectrum ranging from ex parte applications to full fact-finding hearings, and the appropriate procedure is ordinarily a matter for judicial discretion.
2. The judge nevertheless applied the wrong substantive test. The issue was whether continued protection of the respondent from conduct sufficiently serious to require judicial intervention was necessary. It was not whether continuation would cause inconvenience or prejudice to the appellant.
3. Section 42(7) of the Family Law Act 1996 contemplates an order for a specified period or until further order. Good practice requires a finite duration, particularly for an ex parte order. The President’s Practice Guidance on the duration of ex parte orders is essential for such orders and its principles apply equally to orders made on notice. A period longer than 12 months, or an indefinite order, may nevertheless be justified where the evidence demonstrates persistent molestation or a continuing need for protection.
4. The judge had accepted that there had been no trouble for a considerable period, that there was no jurisdiction to make the order afresh on the material before her, and that an indefinite order was contrary to good practice. In those circumstances, continuing the order indefinitely without analysing whether an open-ended order was necessary was manifestly wrong. On the evidence then available, the proper outcome was discharge.
5. The respondent raised further allegations of intimidation for the first time on appeal. Their truth was not assessed. The application was remitted to the Central Family Court for a rehearing before a Circuit Judge, with directions for the respondent to file evidence and the appellant to respond. In the meantime, the order was substituted so that the non-molestation order continued until further order.

• High Court (Family Division): Appeal from the order of Her Honour Judge Hughes QC dated 7 January 2020. The occupation order was discharged, but the non-molestation order was continued indefinitely. The appeal was allowed and the discharge application remitted.