In October 2022, the High Court of Justice in NI considered the appeal process available to victims of domestic abuse if they are not granted emergency protection by the Domestic Proceedings Court.

In his Judgment in the case of ‘In the matter of an Application by Asheigh McDade for Judicial Review and in the Matter of a Decision of the Belfast Domestic Proceedings Court’ (2022 NIKB), The Honourable Mr Justice Scoffield considered the following question-

“Can an unsuccessful applicant for an ex parte Non-Molestation Order in the Domestic Proceedings Court appeal that refusal to the County Court without having to give the Respondent to the application notice of the appeal?”

Applying for an emergency Order

Under the Family Homes and Domestic Violence (NI) Order 1998, a Non-Molestation Order can be granted by the Court on an emergency (ex parte) basis - this would mean that a Respondent would not be made aware that an application had been made until they are served with the Order and protection is in place.  Having the ability to apply for protection in this way acts as a safeguard for many victims who may not feel safe enough to apply for Orders against their perpetrator where they first have to put the perpetrator ‘on notice’. 

In most cases, except for those involving children, vulnerable or incapacitated persons, any application for an ex parte Non-Molestation Order is made to the lower tier of Court, the Domestic Proceedings Court.  A refusal by the Court to grant a Non-Molestation Order may be appealed to the County Court. 

In this particular case, the Applicant Ms McDade was refused an ex parte Non-Molestation Order against her ex-partner by the District Judge sitting at Belfast Domestic Proceedings Court.  Ms McDade wished to appeal this refusal to grant her an Order but argued that the Court rules meant that she could not appeal without notifying her ex-partner about the appeal which would leave her vulnerable against him as she did not have the protection of an Order.

Mr Justice Scoffield fully considered the matter with an in-depth analysis of the legislation and concluded that an Applicant such as Ms McDade would be able to lodge an appeal to the County Court without having to give her ex-partner notice of that appeal.  However, it was accepted that there was a gap in the procedure of how such an appeal is brought and the Court has asked the Department of Justice to bring some clarity to the rules.  

How should an appeal be brought on an emergency basis?

Where an application for an ex parte Non-Molestation Order is refused by a District Judge and the Applicant wishes to appeal on an emergency basis, it is important that this is raised with the District Judge as soon as possible.    Notifying the District Judge of the Applicant’s intention to appeal will ensure that the District Judge does not simply proceed with notifying the Respondent of the application by serving papers on him/her and listing the matter for an ‘on notice’ hearing. 

In the course of any appeal, the County Court Judge may take the view that the Respondent should be given notice of the application and may either direct that the appeal is listed on notice to the Respondent or alternatively dismiss the appeal altogether and direct that the Non Molestation Order application be returned and dealt with by the District Judge on an on notice basis. Alternatively, the County Court Judge may determine that the appeal should be decided without notice to the Respondent until the protection of an emergency order is put in place.

Further clarity around the NMO versus bail conditions debate

Reference was made in this Judgment to the earlier case of Re JR131 's Application [2021] NIQB 7, a case in which Mr Justice Scoffield had previously provided commentary on the differences between the protection of a Non Molestation Order and bail conditions. 

In Mrs McDade’s case, the District Judge’s refusal to grant her an ex parte Non Molestation Order was heavily influenced by the fact that the perpetrator was subject to police bail, including a condition precluding contact with Mrs McDade.

Mr Justice Scoffield reiterated his view that there could be  “no direct equivalence” between the protection afforded by a Non Molestation Order and that afforded by bail conditions, stating “I would not expect the fact that such a bail condition was in place to be taken/as a matter of course/ as a  reason not to grant an NMO/ either with or without notice to the respondent.”  He added however that each case “must be addressed on its own merits” and was “a matter for assessment by the district judge considering the application”.

The guidance given in this case is welcomed by those who represent victims of domestic abuse to assist with future applications for protection on their behalf.

We treat any situation where a client requires emergency protection as a matter of absolute priority.  Should you seek emergency advice about a Non-Molestation Order, please contact Karen Connolly of our office via email on kconnolly@fhanna.co.uk or via phone on 028 9024 3901.