Urgent and Without Notice Applications

12.1

Urgent: Where an order is sought as a matter of urgency, an application may be made to the Court for an emergency order without the requirement for the Applicant to have attended at a MIAM. The categories of urgent application justifying such an exemption are set out in rule 3.8(c) FPR and include cases in which:

(1) There is a risk to the life, liberty, or the physical safety of the prospective applicant or his or her family, or his or her home;

(2) Any delay caused by attending a MIAM would cause:

(A) A risk of harm to the child;

(B) A risk of unlawful removal of a child from the United Kingdom or a risk of unlawful retention of a child who is currently outside England and Wales;

(C) A significant risk of a miscarriage of justice;

(4) Unreasonable hardship to the prospective applicant;

(5) Irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence).

(3) There is a significant risk that in the period necessary to schedule and attend a MIAM, proceedings relating to the dispute will be brought in another state in which a valid claim to jurisdiction may exist, such that a court in that other State would be seised of the dispute before a court in England and Wales.

12.2

‘ Without Notice ’: Applications to court made 'Without Notice' to the respondent(s) shall be allocated in accordance with the Family Court (Composition and Distribution of Business) Rules 2014, and determined by reference to the provisions of Practice Direction 18A, paragraph 5.1, with further regard to the principles set out in Practice Direction 20A, paragraph 4.3-4.5 FPR (noting particularly paragraph 4.3(c)).

12.3

Without Notice Orders should be made only exceptionally, and where –

(1) If the applicant were to give notice to the respondent(s) this would enable the respondent(s) to take steps to defeat the purpose of the injunction; cases where the application is brought without notice in order to conceal the step from the respondent(s) are very rare indeed; or

(2) The case is one of exceptional urgency; that is to say, that there has been literally no time to give notice (either by telephone, text or e-mail or otherwise) before the injunction is required to prevent the threatened wrongful act; or

(3) If the applicant gives notice to the respondent(s), this would be likely to expose the applicant or relevant child to unnecessary risk of physical or emotional harm.

12.4

Any Order which follows an emergency 'without notice' hearing should specify:

(1) the reason(s) why the order has been made without notice to the respondent(s),

(2) the outline facts alleged which have been relied upon by the court in making the order, unless the facts are clearly contained in the statement in support; and

(3) the right of the respondent(s) to apply to vary or discharge the order.

12.5

Gatekeeping decisions: Following any urgent or ‘without notice’ hearing, unless all issues have been determined or the application has been dismissed without any further directions given, the judge may make gatekeeping decisions, including allocation and venue of future hearing, (and if so, shall notify the Gatekeeping team responsible for the area in which the child resides), or shall refer the application to the relevant Gatekeeping team for a decision on allocation and venue of future hearing; in either event, a copy of the C100 shall be sent to Cafcass for safeguarding checks, and (depending on the Gatekeeping decision) the file shall be sent to the court where future hearings will take place (if at a different court centre from the court where the urgent hearing occurred).