While there was ‘nothing unusual’ about the case, DS v AC [2023] EWFC 46, Mrs Justice Lieven noted ‘a significant growth in the number of such applications during the pandemic, and in many parts of the country that increased number has not fallen back to pre-pandemic levels.
‘A large proportion of the applications are made without notice (ex parte) and it may be useful for practitioners to be reminded of the very strict criteria for the making of such orders ex parte’.
Lieven J set out seven principles from the Family Law Act 1996 and caselaw, including that the court must consider whether there is a ‘risk of significant harm if the order is not granted immediately’, and that a without notice order should only be made in ‘exceptional circumstances’.
She said the supporting statement must ‘expressly’ explain why the case is exceptional and the alleged ‘significant risk’.
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