Claire Edgar

The High Court of Northern Ireland recently handed down judgment in the judicial review case of JR231. The judgment explores the legal test to be applied by the domestic courts in determining whether to grant an ex parte non-molestation order under the Family Homes and Domestic Violence (NI) Order 1998.

This case was brought by a victim of domestic abuse who claimed that the Court Service had acted unlawfully by refusing to grant an emergency non-molestation order for her protection.

In a judgment by Mr Justice Humphries delivered on 23rd February 2023, the court acknowledged that the applicant has the right to appeal ex parte against the refusal of the non-molestation order (pursuant to the judgment in Re McDade handed down by Mr Justice Scoffield in November 2022), but was persuaded to exercise its discretion to determine the judicial review as it revealed “important questions of the applicable legal test and procedures to be adopted. It is evident that guidance on these matters will be beneficial to practitioners and decision makers.”

The High Court considered the provisions contained in the Family Homes and Domestic Violence (NI) Order 1998. Under this legislation, when deciding whether to grant a non-molestation order, the court is mandated to have regard to all the circumstances, including the health, safety and well-being of the applicant.

When considering an emergency ex parte application, Article 23 provides a non-exhaustive list of factors to be considered, including the any risk of significant harm to the applicant attributable to the conduct of the respondent if the order is not made immediately.

The court found that the district judge had equated “significant” to mean “really serious harm” thereby treating the two terms as synonymous. The court determined that this was setting the bar too high and that whilst “‘significant’ must mean more than trivial or unimportant harm it was not as high as ‘really serious harm’”.

The court determined that the district judge had erred in law by effectively setting the bar for the granting of an ex parte non-molestation order at a level higher than that decreed by the legislature.

The applicant had also claimed in her application that the district judge had fettered his discretion by stating that in his experience it is very rare for the respondent to a non-molestation order application to approach the applicant as a reaction to being served with proceedings.

The High Court determined that the district judge had not fettered his discretion by reaching this conclusion and that he was entitled to bring his experience to bear in exercising his discretion. This did not amount to a rigid policy and did not mean that the district judge is not prepared to consider evidence which goes to Article 23(2)(b), namely whether the applicant will be deterred or prevented from pursuing the application if an order is not made immediately.

The High Court allowed the third ground of the judicial review finding that as a matter of procedural fairness, the district judge should have raised his concerns about granting the ex parte order with the applicant’s representative and allowed an opportunity to make further submissions and if necessary receive oral evidence.

The High Court concluded that the District Court should afford this opportunity to the applicant’s legal representatives given “the gravity of applications for non-molestation orders”.

Ultimately, the High Court ruled that the district judge’s decisions were infected by an error in law and that the procedure adopted by him in refusing the applications was procedurally unfair.

This is the fourth judicial review decision since the Covid-19 pandemic dealing with the granting of ex parte non-molestation orders to victims of domestic violence and provides further welcome clarity to the application of the law and the procedure to be adopted by the district judge’s court.

• Claire Edgar is a partner in Francis Hanna & Co Solicitors.