Judge: Theis J.
Citation:  EWHC 1277 (Fam)
Summary: In this important case (in the Family Division), Theis J gave guidance on the principles practitioners should adhere to when making without notice applications.
Theis J had been the Applications Judge in the Family Division who had dealt with a without notice application in April 2011 in relation to prospective wardship proceedings concerning a five year old child residing with his mother. The mother sought an order that the child be made a ward of the Court, that the Father be prohibited from removing the ward of the Court from her care, that a passport order be imposed on the father and that an inter partes hearing be listed in two weeks time. The Child’s mother had provided a sworn affidavit in support of her application stating that 9 weeks earlier the Defendant father had threatened to take the child away from her. When questioned as to why the application was proceeding on a without notice basis, Counsel for the plaintiff had informed the Judge that he had been instructed that there had been further threats by the Defendant Father in the past week that he would remove the child from the jurisdiction. On this basis, Theis J granted the Order in the terms sought. Counsel for the plaintiff subsequently contacted the Judge indicating that there had, in fact, been no subsequent threats to remove the child from the jurisdiction and that the Passport Order could not be justified. The instructions which Counsel had relayed to the Court in fact related to another matter. The Passport Order was not made. When the matter came back before Theis J in May 2011, she made a prohibited steps order and discharged the wardship.
Theis J endorsed the guidance on without notice applications previously given by Munby J in Re W (Ex Parte Orders)  2 FLR 927 and Re S (Ex Parte Orders)  1 FLR 308 and by Mr Justice Charles in B Borough Council v S & Anor  EWHC 2584 (Fam), emphasising the duties on applicants to give full and frank disclosure. She made the following additional comments:
(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.
(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.
Comment: This case is a useful reminder of the obligations on all legal representatives when making without notice applications and in particular the requirement that applicants effectively summarise the likely case that they would have to meet had the application been opposed, and the requirement that a contemporaneous note of the applicant’s instructions should be produced.