Director of Public Prosecutions v Dale Stephenson [2025] EWHC 950 (Admin)

[2025] EWHC 950 (Admin)Case No AC-2024-BHM-000277
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN BIRMINGHAMDate Wednesday, 16 th April 2025
Before
FORDHAM J
Between
DIRECTOR OF PUBLIC PROSECUTIONSAppellantDALE STEPHENSONRespondent
Hannah Squire (instructed by CPS) for AppellantSteven Gosnell (instructed by Bhatia Best) for Respondent
Hearing Hearing date: 11.4.25Draft judgment: 14.4.25
Approved Judgment
FORDHAM J

FORDHAM J:

[1]This case is about whether a Non-Molestation Order (“NMO”) is legally valid only when it has been served as required by the Family Proceedings Rules (“FPR”) so that, if not served as required, a person who does an act prohibited by the NMO can have committed no crime under s.42A of the Family Law Act 1996.[2]The case comes before me as an appeal by case stated. Such appeals are governed by s.111 of the Magistrates Courts Act 1980, s.28A of the Senior Courts Act 1981, CrimPR35 and CPR52. Under s.111(1) of the 1980 Act, the Appellant is a person aggrieved by a ruling on 14 August 2024 at Nottingham Magistrates’ Court (“the Magistrates”). The ruling accepted submissions on behalf of the Respondent made at half-time (after the prosecution case and before the defence case) that there was “no case to answer” on a charge of contravening an NMO. The Magistrates ruled that there was no case to answer because the Respondent had not been served with the NMO in accordance with FPR10.6. The Magistrates have asked the High Court to decide whether they were wrong in law (s.111(1) of the 1980 Act). This question of law is posed in the stated case, for the opinion of the High Court: were we entitled to find that there was no case to answer on the basis that the s.42A offence could not be made out? It is common ground that, if my answer is “no”, the appropriate order is to reverse the determination and remit the matter to a differently constituted court (s.28A(3) of the 1981 Act).

Reporting Restrictions

[3]The contents of this judgment are fully reportable. I made an anonymity and reporting restrictions order, for publication (CPR39.2(5)). This case arises out of NMO proceedings heard in private (FPR10.5). There were linked Children Act proceedings to which confidentiality protection attaches (FPR12.72-12.73A). The test of necessity is satisfied, to protect the children’s legitimate interests and secure the proper administration of justice. The protection extends to naming their mother, who shares their second name. It extends to naming a school and its location. But it does not extend to identifying the Respondent. He has been named in criminal proceedings at a public hearing. Any remittal would be back to magistrates. He does not share the same second name as the children or their mother, his former partner.

NMOs

[4]NMOs are made in the family courts pursuant to s.42 within Part 4 of the 1996 Act. Rules of court governing applications under Part 4 of the 1996 Act are found in FPR10. Other relevant rules deal with interpretation and application (FPR2), general case-management powers (FPR4), service (FPR6), miscellaneous matters (FPR29), and contempt of court (FPR37). An NMO is an “order” which a court can “make” (s.42(2)). It makes provision prohibiting a respondent from molesting an associated person and/or a relevant child (1996 Act s.42(1)). The term “molesting” is undefined, but can properly be regarded as constituting deliberate conduct effecting a degree of harassment calling for the intervention of the court: see the Family Court Practice 2024 at §2.664. The NMO can be made on application or in existing proceedings without an application (s.42(2)). An application for an NMO may be ex parte (without notice to the respondent), followed by an opportunity for the respondent to be heard at a full hearing (s.45(1)(3)). An NMO may be for a specified period or until further order (s.42(7)) and it can be varied or discharged (s.49). Under s.42(6), an NMO may be expressed so as to refer to molestation in general, to “particular acts” of molestation, or to both. The basic protective purpose of an NMO is securing the health, safety and well-being of those whom the order protects. This is clear from this mandatory relevancy identified by Parliament in s.42(5): In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being –(a) of the applicant; and(b) of any relevant child.

Criminal Liability

[5]Doing something prohibited by an NMO “without reasonable excuse” is a criminal offence pursuant to s.42A. Section 42A was inserted into the 1996 Act by s.1 of the Domestic Violence Crime and Victims Act 2004, with effect from 1 July 2007. Since it is an arrestable offence, the NMO does not carry a power of arrest. Prosecutions for s.42A offences are brought by the DPP. Examples of criminal cases involving s.42A prosecutions include R v Kirby [2019] EWCA Crim 321 [2019] 4 WLR 131 (21.2.19) (§54 below); and R v AVG [2024] EWCA Crim 1672 (20.11.24) (§33 below). Here is s.42A of the 1996 Act: 42A. Offence of breaching non-molestation order.(1) A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.(2) In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.(5) A person guilty of an offence under this section is liable – (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; (b) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates' court, or a fine not exceeding the statutory maximum, or both.(6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings. “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

Contempt Powers

[6]Failure to comply with an NMO can also engage the contempt powers of the family court who made the NMO: see s.58. Criminal prosecution and contempt proceedings are alternatives: see s.42A(3)(4). Rules of court applicable to contempt proceedings are found in FPR Part 37. The applicant in contempt proceedings will be a person for whose protection the NMO was made. The police may become involved if the applicant successfully applies to the family court for the issue of a warrant of arrest: see s.47(8)(a). I consider the position in contempt proceedings at §§42-51 below.

The Family Court Hearing

[7]The cases arises out of two court hearings. Neither Ms Squire nor Mr Gosnell, for whose assistance I am grateful, appeared in any earlier hearing. The first relevant court hearing was a hearing in private on 1-3 November 2023 before District Judge Chow (“the Judge”) at Nottingham Family Court. That hearing concerned Children Act 1989 proceedings, heard together with 1996 Act proceedings. In the 1996 Act proceedings, the Respondent’s former partner was an “applicant” for an NMO. The hearing involved fact-finding and resulted in a detailed written judgment produced by the Judge on Day 3 (3 November 2023).

Key Facts

[8]The Magistrates’ stated case includes the following as “findings of fact”. They stand as the factual basis for this appeal.(1) The Judge made an NMO on 3 November 2023. That was at an oral hearing. The Respondent was present, having been present throughout.(2) The NMO, made by the Judge at the hearing, included a prohibition. It prohibited the Respondent being present between 0730 and 1630 at a road on which a named child’s school was located.(3) The terms of the NMO were outlined at the hearing. They were also included within the written judgment produced by the Judge at the hearing, a copy of which was emailed to the Respondent after the hearing.(4) The Judge directed the applicant’s legal representative to draw up the order after the hearing, which the representative then did.(5) The order was personally served on the Respondent, after his relevant conduct had taken place.

The Magistrates’ Court Hearing

[9]The second court hearing was on 14 August 2024. It was the Respondent’s criminal trial before the Magistrates. He was being prosecuted for doing – without reasonable excuse – an act prohibited by the NMO made on 3 November 2023, contrary to s.42A(1)(5) of the 1996 Act. The act was driving down the road on which a child’s school was located. It was a “particular act” which was prohibited by the NMO (s.42(6) of the 1996 Act).[10]The Respondent’s defence included that he had “reasonable excuse” (s.42A(1)). The Magistrates’ stated case records that submissions made by the Respondent’s advocate (Mr Hogarth) made points about previous NMOs; about this prohibition being a new term said to differ from previous NMOs; and about the Respondent having been unrepresented on 3 November 2023 in the family court. But the function of assessing the extent of the Respondent’s knowledge and understanding was never reached at the trial. The Respondent did not give evidence. He was not cross-examined. That was because, at the end of the prosecution case, Mr Hogarth made the submission that there was no case to answer. That submission was accepted by the Magistrates, on the advice of their legal adviser.[11]I have referred to the Magistrates’ “findings of fact” (§8 above). To describe such findings will often be inappropriate where the ruling has come at half-time. Only the prosecution evidence has been heard. No evidence has been adduced by the defence. A decision on no case to answer is approached by considering the prosecution’s case taken at its highest. In the present case, however, the prosecution case rested on a set of facts which were agreed. They were presented and uncontested. No witness needed to be called by the prosecution. That is why the key factual points are described as facts, and as findings of fact.

The Magistrates’ Analysis: Four Steps

[12]The Magistrates, accepting advice from their legal adviser, were persuaded by Mr Hogarth that there was no case to answer. As I see it, there were these Four Steps in the Magistrates’ Analysis. First Step: personal service of the NMO was required by FPR10.6. Second Step: personal service of the NMO did not take place until after the conduct in question. Third Step: the absence of required service means the NMO had not yet become legally effective. Fourth Step: an NMO which has not yet become legally effective cannot be the basis of a s.42A offence.

The Magistrates’ First Step

[13]The First Step in the Magistrates’ Analysis was correct. Personal service of the NMO was required by FPR10.6. The Respondent’s former partner was “the applicant” for an NMO. No order had been made by the Judge under FPR6.35 for alternative service. No order had been made by the Judge under FPR6.36 dispensing with service. FPR10 applies to an NMO under Part 4 of the 1996 Act (see FPR10.1). FPR10.6 is clear. It provides: Subject to any order made under rule 6.35 or 6.36, the applicant must, as soon as reasonably practicable, serve on the respondent personally … a copy of the order. A document is served personally on an individual by “leaving it with that individual” (FPR6.25(3)).

Seven Requirements

[14]Pausing there, it is helpful to place the FRP10.6 requirement of personal service within the sequence of the following Seven Requirements, which arose after the Judge made the NMO in this case on 3 November 2023: i) First Requirement. The order needed to be drawn up by the applicant’s representative (FPR29.11(1)(a)). ii) Second Requirement. The drawn-up order needed to be filed with the court (within 7 days) by the applicant’s representative (FPR29.11(3)(a)). iii) Third Requirement. The filed order needed to incorporate a penal notice dealing with the consequences of disobedience (FPR10.12). iv) Fourth Requirement. The court officer needed to seal and authenticate the filed order (FPR29.11(3)(a); FPR29.7(1)(b)). v) Fifth Requirement. The applicant’s representatives needed to “deliver” a copy of the order to the local police together with an accompanying statement (FPR10.10(1)(b), (2) and (3)(a)). vi) Sixth Requirement. The applicant’s representatives needed (as soon as reasonably practicable) to serve a copy of the order on the Respondent personally (see FPR10.6(1); FPR6.25). vii) Seventh Requirement. The applicant’s representatives needed to file a certificate of service (see Practice Guidance: Non-Molestation Injunctions under the Family Law Act 1996 (July 2023) at §22).[15]I add four footnotes in relation to this list. The first is that the representatives would need to act speedier than 7 days (FPR29.11(3)(a)) for drawing up and filing the order, given that personal service had to be “as soon as reasonably practicable” (FPR10.6(1)). The second is that there could in some cases be a further requirement of Judge-approval of the order before sealing, but nothing turns on that in the present case. The third is that the applicant’s representatives could in principle, at any time, apply to the court for alternative service (FPR6.35) or dispensation with service (FPR6.36). If such an order were made, personal service would not then be a requirement. The fourth is that the Seventh Requirement appears within the Practice Guidance, but not obviously within the FPR (FPR6.37).

The Magistrates’ Second Step

[16]The Second Step in the Magistrates’ Analysis was correct. Personal service of the NMO did not take place until after the conduct in question. This was an accepted fact. It is within the Magistrates’ findings of fact.

The Magistrates’ Third Step

[17]The Third Step in the Magistrates’ Analysis is the heart of this case. The question is whether the absence of required service means the NMO had not yet become legally effective. In my judgment, the NMO had become legally effective notwithstanding the absence of required service. That means the Third Step was wrong in law. It means Darlington and Heaton in Cohabitation and Trusts of Land (4th ed) are wrong at 15-007 to say (citing s.42A(2) of the 1996 Act) that:
“The order will not be effective until it has been served on the respondent”
. The reasons why that is so can be seen by looking first at the Judge’s order (§18 below); then at the primary legislation (§20 below); and finally at the rules of court (§26 below). It is fair to say that Mr Gosnell for the Respondent recognised the force of the key points which support this appeal.

The Family Judge’s Order

[18]I start with the Judge’s order. I would accept that a judge in family proceedings could, in principle, make an order as follows: The non-molestation order shall be effective against the respondent only once it has been personally served on him. In fact, this language was a first limb of a two-limbed order which the Brighton Family Court judge had made in AVG (see §7). Ms Squire says it is unlikely that a family judge would make an order framed in this way. She may be right. But it could happen. An order can “specify” a “later date” when it “takes effect” (FPR29.15). Suppose there is an existing NMO, an absent respondent, and a non-urgent but nevertheless necessary variation. The judge could continue the existing NMO, ordering the replacement NMO to be effective only once personally served. But that is not this case. It would raise a question at the Fourth Step (§57 below) in the light of the second basis on which the appeal in AVG was allowed (§§37-38 below). But that is a distinct point.[19]The Judge’s order was made on 3 November 2023. It identified no later date. It identified no condition precedent. The Magistrates did not find these as facts. Mr Gosnell does not say they should have done. There was no direction by the Judge as to service; still less as to the order being effective only after service. In fact, the Judge made clear on 3 November 2023 that she was rescinding all previous NMOs. She made an order that day. She addressed the “specified period” (s.42(7)). It ran until “a year from today, 3 November 2024”, which was its date of “expiry”. All of this, in the context of an order made at a court hearing, at which the Respondent was present. All this, recorded in a written judgment delivered that day and provided to the Respondent.

The Primary Legislation

[20]I turn to the primary legislation. Nothing in the 1996 Act says or suggests that the absence of required service means an NMO will not yet become legally effective. The 1996 Act focuses on the “order” which the family court is empowered to “make” (s.42(2)). When the family court acts to “make” the “order” it can be “for a specified period or until further order” (s.42(7)). All of which has a basic protective purpose (s.42(5)). And there will be no criminal offence if the respondent has “reasonable excuse” (s.42A(1)).[21]Then there is s.42A(2): (2) In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.[22]In my judgment, s.42A(2) shows Parliament’s clear intention. An NMO granted without notice would have become legally effective even where required service had not yet taken place. Even where an individual knows nothing of the application for the NMO, once the order has been made there can be a criminal offence of doing something prohibited by it. The clear intended consequence of the order when made is that it is effective. That is why the s.42A(2) shield is needed, because the respondent is unaware of the existence of the order which has been made and is effective. The very design of the s.42A(2) shield – awareness of the existence of the order – shows that service is not a precondition to effectiveness. It is unfortunate that s.42A(2) was not drawn to the attention of the Magistrates, by either of the advocates at the hearing on 14 August 2024.[23]I have considered whether s.42A(2) could be a minimum condition, so that awareness of the existence of the order is necessary; but nevertheless not sufficient. I have also considered whether s.42A(2) could be a minimum safeguard, to deal with a situation where a family judge dispenses with any service of an ex parte NMO. These are not, in my judgment, realistic explanations. Mr Gosnell was right not to advance them.[24]A principled way to test the point is to ask whether Parliament – in the 1996 Act – intended the absence of “such [service] of the [NMO] as [is] required by rules of court” (language borrowed from s.45(1)) to have the consequence that an NMO is not yet legally effective. That is analogous to the test for whether an enactment intends invalidity to flow from non-compliance with a procedural requirement: see R v Soneji [2005] UKHL 49 [2006] 1 AC 340, recently applied in R v Layden [2025] UKSC 12 at §§27-28, 68 and 94. In my judgment, s.42A(2) answers that question. Parliament clearly intended the NMO to become effective, in accordance with its terms, when made. But criminal liability is subject to a specific unawareness shield (s.42A(2)) and a general “reasonable excuse” defence (s.42A(1)).[25]I pause to note that the Explanatory Notes to the 2004 Act (§15) treat s.42A(2) as being of general application (“Under section 42A(2), an individual would only be guilty of a criminal offence if he is aware of the existence of the order”). So does the Family Court Practice 2024 §2.665 (“The section makes breach of a non-molestation order a criminal offence if the defendant is aware of the existence of the order and, without reasonable excuse, does anything prohibited by the non-molestation order”). In fact, s.42A(2) is dealing only with NMOs which are made on a without notice application (“by virtue of section 45(1)”). So, this is a baseline protection – a shield – in a case where the respondent has “not been given … notice of the proceedings” (s.45(1)). It is necessary for the criminal offence – in the case of an NMO made without notice – that the respondent “was aware of the existence of the order”. All of which is akin to ignorance of the existence of the NMO standing as a statutorily-prescribed reasonable excuse. But s.42A(2) provides a big clue as to NMOs and their effectiveness.

The Rules of Court

[26]I turn to the FPR. I have identified Seven Requirements. The starting-point is that requirements are imposed for good reason. They matter. They should be complied with. They include service (FPR10.6). They include an incorporated notice as to the consequences of disobedience (FPR10.12). There can be consequences if they are not complied with. But, in the present context, these are all points that belong – together with all other relevant circumstances and considerations – to the evaluation of whether there is a “reasonable excuse” defence.[27]Nothing in the FPR says or suggests that the absence of required service means an NMO will not yet become legally effective. The “order” is “made” (FPR10.6). Service of the order – unless dispensed with by “order” which has been “made” – is something which “must” be done (FPR10.6). But the rules do not say that the order is effective only once service has taken place. They do not say that the failure to serve the order vitiates its validity or brings to an end its effectiveness. They do not even say that service must be immediate. It must be “as soon as reasonably practicable” (FPR10.6(1)).[28]Then there is FPR29.15: 29.15. When judgment or order takes effect. A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify. This is a clear and express rule. It deals with “when [an] order takes effect”. There is no provision in FRP29 or FPR10, disapplying this rule (FPR29.15) for NMOs. This rule fits alongside all those rules about requirements when orders have been made (§14 above). It answers the very question which the Magistrates were asking: when is it that an “order takes effect”? It is unfortunate that FPR10.10(2) was not drawn to the attention of the Magistrates, by either of the advocates at the hearing on 14 August 2024. It alone is, and would have been, the end of the case.[29]Even in the bespoke rules about the 1996 Act (FPR10), there is FPR10.10. It concerns the Fifth Requirement (§14v above). I will set out here FPR10.10(1) and (2): 10.10. Service of an order on the officer for the time being in charge of a police station.(1) Where the court makes … (b) a non-molestation order, a copy of the order must be delivered to the officer for the time being in charge of – (i) the police station for the applicant's address; or (ii) such other police station as the court may specify.(2) A copy of the order delivered under paragraph (1) must be accompanied by a statement showing that the respondent has been served with the order or informed of its terms (whether by being present when the order was made or by telephone or otherwise).[30]In my judgment, FPR10.10 shows the clear intention of the rule-makers, even when focusing on the 1996 Act and NMOs. An NMO would have become legally effective even where required service had not yet taken place. Otherwise, the rule would say “a statement showing that the respondent has been served with the order or service has been dispensed with by the court”. The rule is clearly contemplating that an order will be effective, and breach can be a criminal offence, albeit that the respondent has not been served. The word is “or”. The respondent has been “served with the order or informed of its terms”. The rule-maker thought the police should have that information given the without-notice shield (s.42A(2)) and the reasonable excuse defence (s.42A(1)). Finally, the rule-makers make clear that an “order” is “made” at a hearing and it will be enough for the purposes of arrest if the respondent was “present when the order was made” and thus “informed of its terms”. It is unfortunate that FPR10.10(2) was not drawn to the attention of the Magistrates, by either of the advocates at the hearing on 14 August 2024.[31]Again, a principled way to test the point is to ask whether the rule-makers intended the absence of required service (FPR10.6), of a document with a required penal notice (FPR10.12), would mean that an NMO is not yet legally effective. In my judgment, FPR29.15 and FPR10.10(2) each answer that question. The rule-makers clearly intended the NMO to become effective, in accordance with its terms, when made. But criminal liability is subject to a specific unawareness shield (s.42A(2)) and the general “reasonable excuse” defence (s.42A(1)).

A Reality Check

[32]It is right to test the position by looking at practical implications. Suppose a respondent is at a hearing. An NMO is made. The respondent is informed of the terms. The judge does not dispense with service (FPR6.36). The respondent leaves the court-room. An hour later, the respondent deliberately sends an abusive text to the mobile phone of the applicant or the relevant child. It surely cannot be the law that the respondent acts with impunity – unable to be prosecuted (s.42A) or proceeded against as a contempt (s.58) – because there was no order which had yet taken effect. It surely cannot be the law that every family judge has to foresee that possibility and make an order at the time, dispensing with service (FPR6.36). Happily, it is not the law.[33]I was shown no textbook commentary or decided case which directly answers the question posed on this appeal. Ms Squire for the Appellant cited three authorities which, she submitted, assisted the Court. The most relevant of these was AVG (§5 above). That was a criminal appeal against conviction, for the 1996 Act s.42A offence of breaching an NMO without reasonable excuse. The NMO had been made without-notice (s.45) by a family judge at the Brighton Family Court.[34]A notable feature of AVG was that the family judge’s order in that case had expressly stated as follows (see §7): This order shall be effective against the [defendant] once it is personally served on him or once he is made aware of the terms of this order, whether by personal service or otherwise.[35]At the defendant’s trial in AVG, the criminal judge (recorder) at the Lewes Crown Court ruled that there was no case to answer. The basis of that ruling was explained by the Court of Appeal (§§17-18): The recorder referred to the importance of the penal notice informing the defendant of the consequences of breach of the non-molestation order. He referred to the Family Procedure Rules 2010 as to service of court orders, noting that rule 6.19(3) required an order for substituted service to specify a particular method by which such service was permitted. He stated that the order made by the deputy district judge did not comply with those rules because it included the words “... or otherwise”, which he said were not a permitted form of alternative service. The recorder went on to say that the prosecution had to prove service because the defendant was only prohibited from certain conduct if the order had been properly served upon him. The recorder concluded that the evidence adduced by the prosecution could at best show that the defendant knew there were certain things he ought not to do, but not that he was aware of “the terms of the order”.[36]I pause to observe that the recorder in AVG had reasoned that “the prosecution had to prove service because the defendant was only prohibited from certain conduct if the order had been properly served upon him” (§35 above); that the prosecution’s position was that it was “wrong in law to find that service was a prerequisite of criminal liability for breach of the order” (AVG at §20); and that the defence “conceded that personal service of the order was not a prerequisite for service to be effective” (AVG at §21).[37]The Court of Appeal in AVG overturned the recorder’s decision on two distinct bases. First, the prosecution had adduced evidence capable of satisfying the family judge’s order about the defendant being “aware of the terms of [the] order … otherwise” (§§29-30). The family judge’s order was not one which “contravened” the FPR but, even if it did, it was valid and binding unless and until it was set aside (§§31-33). Secondly, the prosecution had adduced evidence capable of satisfying s.42A(2) of the 1996 Act, awareness of the “existence” of the NMO. That – rather than awareness of the “terms” of the NMO – was the governing test for criminal liability (§§34-36). The Court of Appeal treated the terms of the family judge’s order (§34 above) as yielding to the less demanding wording of s.42A(2). A possible alternative route would have been that the legally correct meaning of the family judge’s order (“made aware of the terms of this order”), given the statutory context, was that “the terms” meant “the existence”. But, as I read it, that was not the way the Court of Appeal expressed the second basis for allowing the appeal. I will return to this point at the end of this judgment (§57 below).[38]The second basis in AVG stands as authority for this proposition: a without-notice NMO is legally effective for the purposes of criminal liability under s.42A of the 1996 Act, albeit that required service has not taken place. That includes where the required service is an express term of the order. The Court of Appeal recognised that it was s.42A(2) – the shield based on whether there was awareness of the existence of the NMO – which stood as the governing test for criminal liability. AVG was a without-notice order (s.45) making s.42A(2) directly applicable. But in my judgment, for both on-notice and without-notice NMOs, the order is legally effective for the purposes of criminal liability under s.42A of the 1996 Act, albeit that FPR10.6 service has not taken place. Ms Squire is right to place reliance on AVG in this appeal. Mr Gosnell is right to see its force. The Magistrates did not have the benefit of AVG, which was decided on 20 November 2024, two months after the ruling which is under appeal in this case.

Davy

[39]A second case cited by Ms Squire was Davy International Ltd v Tazzyman [1997] 1 WLR 1256. That case concerned a without-notice civil search and seizure order made by the High Court in respect of office premises in Dorset. Employees, on whom the order was not personally served, were said to have acted to frustrate its execution. Civil enforcement (under RSC Order 45 rule 5) required that “a copy of the order has been served personally on the person required to do or abstain from doing the act in question” (rule 7(2)). The Court of Appeal held that the civil court could retrospectively dispense with personal service. The contrast in the present case is that no provision of the Act or FPR makes service a requirement for a criminal conviction.[40]Within the judgment in Davy is a discussion of Turner v Turner (1978) 122 SJ 696 (see Davy at 1262E-1263H). That was a contempt case where a family judge ordered a father – present in court – to hand the child to the mother that afternoon. Because that was a mandatory order, and RSC Order 45 r.5(6) applied only to a prohibitory order (1263D), the solution was for the civil court retrospectively to dispense with service. A prohibitory order would have presented no similar problem, because RSC Order 45 r.5(6) said (1263D): An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either –(a) by being present when the order was made, or(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise. This stands as a reminder of the applicable rules, as to whether an order is effective and enforceable. I have analysed the applicable rules above.[41]Within the judgments in Turner v Turner there was this from Lord Denning MR (see Davy at 1263B): I agree with the observation of Cotton LJ in Hyde v Hyde (1888) 13 P.D. 166, 171-172, where he said:
“If it were proved, for instance, that the person was actually in court at the time the order was made, service would be unnecessary in order to obtain process for contempt”
. Ms Squire relied, in her skeleton argument, on Lord Denning’s agreement with Hyde v Hyde. Cotton LJ in 1888 and Lord Denning in 1978 were making observations in the context of civil enforcement by contempt proceedings (here, 1996 Act s.58). That is a topic to which I will turn next.

Contempt

[42]This case is about criminal liability under s.42A of the 1996 Act. It is not a case about the exercise of the family court’s contempt powers under s.58 of the 1996 Act. But I would be reluctant completely to ignore the position in relation to contempt. The parties did not ignore the question of civil enforceability by contempt. There is an appropriate cross-check. The Appellant’s skeleton argument relied on Turner v Turner and Hyde v Hyde. The Respondent’s skeleton argument identified a “key issue” by reference to any enforcement proceedings “civil or criminal”. If the law on contempt were to treat the requirements of service (FPR10.6) or an order containing a penal notice (FPR10.12) as essential preconditions to effectiveness of the NMO, it may be necessary to confront and explain an apparent incongruity. If the law finds service and a penal notice to be necessary safeguards before an individual can be penalised for non-compliance as a contempt, can the law really be that these necessary safeguards are absent when the individual comes to be penalised for non-compliance as a crime? Would not the criminal law be expected to be at least – and if anything more – rigorous than the law of civil contempt?[43]The commentary on FPR10.12 (requirement of a penal notice in an NMO) in the Family Court Practice 2024 says this: Penal notice. The effect of r.10.12 is to require that a penal notice be endorsed on FLA orders. A penal notice warns the respondent of the consequences of disobedience and is an essential prerequisite to enforcement. A defective penal notice makes the order unenforceable, as does the omission of a penal notice. The cases cited are Re Dad [2015] EWHC 1655 (Fam) and H v T [2018] EWHC 1310 (Fam) [2018] 4 WLR 122. To those can be added Re L (A Child) [2016] EWCA Civ 173 [2017] 1 FLR 1135.[44]Dad was decided on 15 September 2015. It was about a collection order, empowering a tipstaff to take steps to locate and take charge of an abducted child; and to arrest (on grounds of reasonable cause) a person served with the order who disobeyed it (§4). An application for committal to prison for disobedience of Mr Chaudhry to whom the collection order was produced in person (§§5, 15) was dismissed because the penal notice did not comply with the prominence standard required by FPR37.9 (§12) which had caused “injustice” (§17). The “serious defect in the order” meant “I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious”. The Court in Dad did not say that the collection order had not taken effect. It did not say there could be no breach. It said there could be no contempt committal. That was an application of rules relating to contempt. And the outcome could have been different had there been no “injustice” (§§13-14, 17).[45]The key rules in force when Dad was decided – and also when H v T and Re L were decided – were as follows. FPR37.4 provided that “If a person(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or(b) disobeys a judgment or order not to do an act, then, subject … to the provisions of these Rules, the judgment or order may be enforced under the court's powers by an order for committal” (see Dad §9; H v T §18). Subject to inapplicable exceptions in FPR37.9(2), FPR37.9(1) provided that “a judgment or order to do or not do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets” (see Dad §9; Re L §60; H v T §18). Further provision about the penal notice was in FPR37PDA (see H v T §20). As to “served in accordance with this Chapter”, FPR37.5(1) (see Re L §57) included this:
“Unless the court dispenses with service under rule 37.8, a judgment or order may not be enforced under rule 37.4 unless a copy of it has been served on the person required to do or not do the act in question …”
Finally, FPR37PDA §13 empowered the court to waive a “procedural defect … if satisfied that no injustice has been caused” (see Dad §13; Re L §61; H v T §23).[46]Re L was decided on 22 March 2016. It was another case about a collection order. Mr Oddin had been committed to prison for breach. He was one of the named defendants (§13) in an order which required personal service or, if personal service was refused or evaded, if “the effect of the order has been brought to his or her attention” (§5). Mr Oddin’s attendance at court had been ordered (§16) and he had been questioned under compulsion about the child’s whereabouts (§17). The contempt committal order was set aside by the Court of Appeal. One basis was that the procedure had denied Mr Oddin, when questioned, contempt committal safeguards (§§55, 74, 78(6)(7)). Another basis was non-compliance with the rules on service and the penal notice (§§57-62, 75, 78(3)). Unless dispensed with, prior service of the collection order was required by FPR37.5; and in this case by the order itself (§§57-59). There was also the defect of the absence of prominence of the penal notice required by FPR37.9 (§60). On the facts, there was “injustice” and the defects in service and the penal notice could not be waived under FPR37PDA §13 (§61). In L, Theis J for her part said of service and a penal notice, not that they were rigid universal preconditions, but that they should be at the forefront of the court’s mind (§78(3)). Munby LJ for his part recognised that the order itself (§§5, 57) allowed for “the effect of the order” to have been “brought to [the] attention” of the person in question. Vos LJ (with whom Munby LJ agreed: §71) said (at §75) that persons should not be at risk of being sent to prison for contempt unless they have been “served or otherwise made fully and properly aware in accordance with the rules”, it being established that “they have been served or so made aware”. The Court in Re L did not say that the collection order had not taken effect. They did not say that the terms of the order (allowing for service where “the effect of the order has been brought to his or her attention”) were unlawful. They did not say there could be no breach. They said there could be no contempt committal, as an application of rules relating to contempt. And that outcome could have been different had there been no “injustice” (§61).[47]H v T was decided on 25 May 2018. It was about a child arrangements order requiring a mother to make a child available for contact. It was made at a hearing at which the mother was present, but two materially different versions of the order were drafted, one of which was sealed (§3). One was handed out immediately after the hearing (§4). The grandmother’s application for enforcement led to a suspended contempt committal to prison (§§7-9). The High Court set aside the contempt committal, essentially because of injustice arising from the absence of a committal application and from inadequate consideration of breaches and alternatives by the committing judge (§§25-29). The judgment in H v T went on to observe that the handed out order did not contain a rules-compliant penal notice, and “an order can only be enforced by committal if endorsed with a penal notice that complies with FPR r.37.9(1) and §§1-1 and 1.2 of FPR37PDA”. Those observations were not the basis for the decision in H v T. The Court did not say that the child arrangements order had not taken effect. It did not say there could be no breach. It said there could be no contempt committal, as an application of rules relating to contempt. But that could be different in a case of no “injustice” (§23).[48]In my judgment, what arises from close examination of these cases is this. Rule-compliant service and a rule-compliant penal notice are important safeguards. Non-compliance can mean – by reference to express rules applicable to contempt powers – that contempt committal is not a permissible or appropriate response. That is not because an order has not taken effect. It is not because there has been no breach. It is because of preconditions applicable to the response of contempt committal. These, moreover, are features which are relevant to the culpability of the individual and the justice of the judicial response. Finally, even where express rules relating to contempt committal, there may be (and under FPR37PDA §13 was) an overall consideration of “injustice” and waiver or dispensation.[49]The rules within FPR37 changed on 1 October 2020, by virtue of the Family Procedure (Amendment No.2) Rules 2020/758. The Explanatory Note said the new Part 37 “streamlines and simplifies the process for proceedings for contempt of court”. The Explanatory Memorandum said the Civil Procedure Rules Committee “were of the view that the Rules should be made simpler, easier to operate and more succinct, and by doing so, promote better standards of procedural fairness”. The provisions of FPR37 on which Dad, H v T and Re L were decided (§45 above) were repealed and not replaced.

(c) and (e)) that:

“A contempt application must include statements of all the following, unless … wholly inapplicable … (c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service; … (e) confirmation that any order allegedly breached or disobeyed included a penal notice”
. FPR37PDA §2(2) provides that: “The court may waive any procedural defect in the commencement or conduct of a contempt application if satisfied that no injustice has been caused to the defendant by the defect”.[50]If a respondent were at a family court hearing at which an NMO was made and then went away and breached the order, I would be surprised if the absence of service (FPR10.6) with a penal notice (FPR10.12) were necessarily a complete answer to an application for contempt. The law may be as straightforward as Cotton LJ in Hyde v Hyde and Lord Denning in Turner v Turner saw it (§41 above). I do not think there is any necessary incongruence between civil enforcement and criminal enforcement, as to what the Family Court Practice 2024 commentary §2.665 (§43 above) calls “essential prerequisite[s] to enforcement”. Taking one recent example, I note that in Addou v Bennabi [2024] EWHC 2702 (Fam) the Court was satisfied (at §§49, 50iii) that an order “was made with F present in person at court”, being “made … in the presence of F who was at court” and “was aware of the order made”. I note that the Family Court Practice 2024 commentary in relation to FPR10.6 itself says (at §3.426):
“No injunctive order is enforceable unless it is proved that the respondent is aware of it”
. I am not, of course, deciding any point about the law or contempt. But that completes my cross-check. It has not produced any discomforting incongruence.[51]Having said that, I record that I agree with Ms Squire that any difference between criminal and civil enforcement could not, in any event, be dispositive. Contempt is a distinct enforcement mechanism. It has its own rules, features and caselaw. The family court dealing with contempt can consider waiver (FPR37PDA §2(2)), or retrospective dispensation (Davy: §39 above). The criminal court has no such powers and is not concerned with any of this. The police can arrest in relation to contempt only if a warrant has been obtained (1996 Act s.47(8)); but they can arrest for the s.42A offence without any such precondition. Contempt has its own principled approach to culpability: deliberate, knowing disobedience to the order (see Addou at §52). Contempt applications may involve safeguards and preconditions which are general, and not tailored to NMOs under the 1996 Act. Under the 1996 Act, Parliament has deliberately provided for a criminal offence (1996 Act s.42A), with a “reasonable excuse” defence (s.42A(1)) and an “aware of the existence of the [without-notice] order” shield (s.42A(2)). The second basis on which the appeal succeeded in AVG (§§37-38 above) shows that service of an order with a penal notice are no prerequisite to criminal conviction. In the end, the availability or unavailability of contempt is neither here nor there.

The Magistrates’ Fourth Step

[52]The Fourth Step in the Magistrates’ Analysis was that an NMO which has not yet become legally effective cannot be the basis of a s.42A offence. Whether this was correct or not does not arise. That is because of the error of law in the Third Step. There is also an artificiality in supposing that the NMO had not yet become legally effective, by virtue of the absence of required service. It is sufficient, in my judgment, to make the following three points.[53]The first point is that great caution is needed whenever points of legal ineffectiveness of an NMO are raised by a defendant in a s.42A prosecution. As was explained in Kirby (§5 above), the criminal offence under s.42A can arise even where the NMO is seen as legally invalid. NMOs are to be obeyed. Disobedience is a crime. It is not for the person affected by a court order to second-guess its validity. Nor is it for the criminal court to do so. Orders are valid, unless and until set aside.[54]Kirby was the third case cited by Ms Squire. In that case, the High Court had made an NMO on the application of a local authority. It transpired that the local authority was not an “associated” person and was thus ineligible to apply for an NMO (see s.42(2)). Mr Kirby had breached the terms of the NMO. He pointed to its legal invalidity. But that was no defence. He was obliged to comply with the order, unless and until it was set aside. Especially because it had been made by the High Court. That was a criminal appeal against conviction for the 1996 Act s.42A offence of breaching an NMO without reasonable excuse. The NMO had been made by a judge in the High Court, on the application of a local authority. It was later recognised that the local authority had not been an “associated” person and was therefore statutorily ineligible to apply for the NMO (1996 Act s.42(2)). Mr Kirby had breached a prohibition in the NMO. In his appeal, he pointed to its legal invalidity. The Court of Appeal held that this was no defence. He was obliged to comply with the order, unless and until it was set aside. Especially because it had been made by the High Court, but probably even if it had been made by another family court. Kirby illustrates that some legal invalidity arguments will be irrelevant in criminal proceedings. That point would be relevant to the Fourth Step in the Magistrates Analysis, to which I will return.[55]Delivering the judgment of the Court of Appeal in Kirby, Singh LJ said this (at §§14-15): In 1846 in Chuck v Cremer [1846] Coop T Cott 338, Lord Cottingham LC said:
“A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void — whether it was regular or irregular. That they should come to the court and not take it upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”
That passage was cited by Romer LJ in Hadkinson v Hadkinson [1952] P 285, 288:
“It is the plain and unqualified obligation of every person against, or in respect of whom an order is made, by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”
[56]The second point is this. The same conclusion does not invariably follow in relation to all questions about whether an NMO has become effective. These passages from Kirby use the language “knows” and “is made”. They are not addressing the point at which an order takes effect. I will give two examples. The first example is where the family court making the NMO has expressly specified (see s.42(7) and FPR29.15) that the order takes effect from a future date. Conduct prior to that date could not possibly breach that order. The individual must be entitled to raise that point in the criminal court. The criminal court must be able to consider that issue of the legal effectiveness of the NMO. It is unthinkable that it could be otherwise. The second example is where there is an express statutory provision which prescribes when an NMO takes effect. As I have explained, there is no such provision or rule. But if one did exist, that too must be a point which could be relied on. The Magistrates’ Fourth Step would then be correct.[57]The third point is this. The following question remains: Where does all of this leave an NMO which itself spells out that it takes effect only when some step has been taken? The second basis of allowing the appeal in AVG stands as authority, for a without-notice NMO, that s.42A(2) governs the position, notwithstanding the terms of the family court’s order itself (§§37-38 above). That is perhaps a striking position. I have suggested an alternative interpretative route, based on the language which the family judge used in that case (§37 above). If a family judge were to spell out clearly and unambiguously that an NMO “takes effect only if” there has been personal service (§18 above), or that it “takes effect only if” some event or other step has taken place, I think a defendant would be able to point to the non-satisfaction of this express requirement in the criminal trial for the s.42A offence. However, on the authority of AVG, the relevance of this would need to arise within consideration of the “reasonable excuse” defence (s.42A(1)).

Conclusion

[58]For the reasons I have given the appeal succeeds. My answer to the question in the stated case is “no”, you were not entitled to find that there was no case to answer on the basis that the s.42A offence could not be made out. The appropriate order is to reverse the determination and remit the matter to a fresh bench of magistrates (s.28A(3) of the 1981 Act). As in AVG, at any retrial, consideration can be given to the issue of whether the Respondent had a “reasonable excuse”. He can give and adduce his evidence. That is what would have happened, had his half-time application of no case to answer been dismissed, as in law it should have been. Having circulated this judgment in draft, no consequential matter arose.

Endnote: Citing Key Instruments

[59]There is a practical endnote to this case. I was originally provided with a bundle of authorities which contained only case-law. My clerk asked the parties whether they intended to provide any legislation or rules. The response was a promptly-refiled bundle of authorities which included some legislation and some rules. These included two provisions from the 1996 Act (ss.42A and 45) and two from the FPR (FPR6.19 and 10.6). Zooming in on a few individual key provisions is, in my judgment, a dangerous exercise. Enactments and rules – like other instruments – always fall to be interpreted as a coherent whole. There are, almost invariably, clues to interpretation and application to be found in other provisions within the same instrument. Good examples of missing provisions in this case were FPR10.10 and FPR29.15. The Magistrates were not shown these; nor even s.42A(2). In my judgment, and experience, the Court is best assisted if the parties’ analysis of enactments and rules has used a sufficiently wide radar; and if the materials provided permit a sufficiently comprehensive access to the key instruments. I do understand why advocates – often reminded of the need for focused and targeted citation of authorities and for not overburdening the Court – focus on the individual key provisions that they think are most relevant. It may not be an easy balance to strike, especially because different judges may see things differently. I make clear that what I have said is not intended as a criticism of anyone. It is a practical pointer.