Director of Public Prosecutions v Dale Stephenson

An order made by a family court takes effect when made unless the court specifies a later date or a statutory or procedural rule provides otherwise. Personal service required by the Family Procedure Rules 2010 is not, by itself, a precondition to the legal effectiveness of a non-molestation order or to criminal liability under section 42A of the Family Law Act 1996.

Non-compliance with service, penal-notice or related procedural requirements may be relevant to a defence of reasonable excuse and to contempt proceedings. It does not retrospectively invalidate the order. A person affected by an order must obey it unless and until it is set aside, subject to issues concerning when the order takes effect and any express statutory or judicial condition.

The Director of Public Prosecutions appealed by case stated from a ruling of Nottingham Magistrates’ Court on 14 August 2024. The magistrates upheld a submission of no case to answer on a charge under section 42A of the Family Law Act 1996.

A non-molestation order had been made orally at a family-court hearing attended by the respondent. Its terms were explained and later sent to him, but personal service occurred only after the alleged breach. The magistrates concluded that the order was not legally effective until service in accordance with FPR10.6. The central issue was whether failure to comply with that service requirement prevented the order from founding criminal liability.

1. Appeal allowed. The magistrates were wrong to conclude that the non-molestation order was ineffective until personally served. The determination was reversed and the matter remitted to a fresh bench of magistrates.
2. An order made under section 42 of the Family Law Act 1996 takes effect when made, unless the family court specifies a later date or makes effectiveness conditional on a specified event. Neither section 42 nor section 42A makes service a condition precedent to effectiveness.
3. Section 42A(2), which supplies a specific protection where a without-notice order was made and the respondent was unaware of its existence, confirms that an order may be effective before service. Criminal liability remains subject to the respondent’s awareness where section 42A(2) applies and to the general reasonable-excuse defence under section 42A(1).
4. The Family Procedure Rules 2010 impose important requirements concerning drawing up, filing, sealing, delivery to the police, personal service and penal notices. FPR29.15 provides that an order takes effect when made or on a later date specified by the court. FPR10.10(2), by contemplating that the police may be told that the respondent was informed of the order by being present when it was made, is inconsistent with service being an essential precondition to effectiveness.
5. Rules governing contempt proceedings operate differently. Defects in service or penal notices may prevent or make inappropriate a contempt committal, but that does not mean that the order was ineffective or that no breach occurred. The criminal court is applying the separate statutory scheme in section 42A.
6. Arguments that an order is legally ineffective require caution. Under R v Kirby, a person must obey an order unless and until it is set aside, even if its validity is questioned. That principle does not exclude consideration of whether the order had yet taken effect, whether legislation prescribes a different commencement point, or whether the order itself made effectiveness conditional.
7. At any retrial, the respondent may raise reasonable excuse and adduce evidence on that issue.

• High Court (Administrative Court): appeal by case stated allowed. The magistrates’ determination was reversed and the matter remitted to a differently constituted court.
• Nottingham Magistrates’ Court: on 14 August 2024, the court ruled at half-time that there was no case to answer on the section 42A charge.