Re P (Service on Parent in a Refuge)

The purpose of this judgment is to provide guidance upon the practice to be adopted when court orders need to be served upon a person who is thought to be residing at a women’s refuge. In such cases a tension exists between, on the one hand, the need for the court’s orders to be served and, on the other, the need to ensure confidentiality of the address of a refuge for the protection of the vulnerable individuals who have sought protection there. The Family Procedure Rules 2010 [‘FPR 2010’] do not make any express provision for these circumstances and there is not thought to be any previous reported authority or other guidance on the approach to be taken.

The issue of service has arisen in the course of ongoing proceedings. In addition to receiving submissions from the two parties to the proceedings, who are the parents of a 21 month old boy, the court has been assisted by submissions from counsel on behalf of (a) the Secretary of State for Justice and (b) Latin America Women’s Aid [‘LAWA’], Refuge, and the Women’s Aid Foundation of England [‘WAFE’], as interveners.

The facts of the substantive proceedings are illustrative of some of the problems that may arise when attempting service on a resident in a refuge. I will therefore give a brief description of the relevant facts to establish the context within which wider considerations and any guidance may sit.

The applicant and respondent met in 2018 when the applicant father [‘F’] was transitioning from male to female. F will be identified as female in this judgment. The respondent mother [‘M’] is Bolivian. They married on 15 August 2020. M left her home in Bolivia and the parties have lived in England and Wales since the wedding. Their son, J, was born in May 2021.

During the course of the breakdown of the parents’ relationship, each has made allegations of domestic abuse against the other. F claims that M has regularly threatened to abduct J.

In March 2022 F discovered that J’s Red Book and birth certificate had been removed. F subsequently applied for a Prohibited Steps Order (“PSO”) against removal, that application was served on M the following day. Shortly after that, M and J moved into a refuge in London. F then applied for the return of J to her care, a PSO against removal and the handing over of any and all travel documents, passports or applications for the same. That application was served on M by email. On the same day, M obtained a without notice non-molestation order against F.

Matters escalated further and, in May 2022, F, fearing the imminent abduction of her son, applied to the High Court for a range of orders under the Child Abduction and Custody Act 1985 (CACA 1985). It is of note that one of the orders sought was for M’s address to be disclosed to F’s solicitors on the basis that they would undertake not to give that information to F.

On the 30 May 2022, Mrs Justice Morgan made a range of orders including a location order and disclosure orders against a number of government agencies and other bodies. The court’s order directed that M must attend the next hearing. Paragraph 12 of the order provided for the applicant to “effect service of this order along with a record of this without-notice hearing on the respondent and service shall be by email, the respondent having previously responded to service by this method and her address being otherwise currently unknown”.

Included in the disclosure orders made on 30 May was a direction requiring two named staff at one refuge and another staff member of LAWA to provide ”all information relating to J’s whereabouts within their knowledge or control”.

LAWA subsequently wrote to Morgan J detailing their concerns over the orders that had been made. They highlighted that the service of similar orders in previous cases had resulted in significant harm. LAWA explained that service of the court order on the mother would result in her having to be “immediately taken to another refuge with the child. The refuge will no longer consider it safe for her to remain at that location when the address has been compromised. It also leaves’ other women and children at risk”. Additionally, they raised concerns about the process of without notice location orders being used to continue abusive behaviour.

On 24 June 2022, Morgan J ordered that the letter from LAWA should be treated as an application to discharge or vary the orders relating to their organisation or employees and that this should be considered, along with the issue of how service may satisfactorily be achieved in circumstances where M was said to be residing with the child in a refuge, at a hearing on 30 June 2022. Notice was given for LAWA and the Tipstaff to attend that hearing.

On 30 June, the matter was heard before Mrs Justice Knowles. Knowles J discharged the location order, save for ordering that travel documents should be given to the Tipstaff. A child arrangements order was made providing for indirect contact between F and J via photographs and a video. The court ordered F to set out her proposals for contact and living arrangements. Further directions were made and the proceedings themselves were transferred back to the Central Family Court. The High Court, however, retained consideration of the issue of service at a refuge and directions were made for the position of LAWA, the IMECE Women’s Centre and Islington LBC Refuge (and their respective employees) to be considered at a further hearing. Women’s Aid and Refuge were invited to intervene. The court also invited the Secretary of State for Justice to intervene to assist the court and the other parties to consider the following three issues of principle:

In advance of the oral hearing before me on 22 November 2022 detailed written submissions made by Jason Pobjoy, counsel for the Secretary of State for Justice, had been circulated. These submissions were largely accepted by all parties and by LAWA and WAFE as providing common ground upon which guidance might be based. In the circumstances, there was no need for Mr Pobjoy to attend and the hearing proceeded on the basis of the other parties making submissions in order to develop certain points. The court is most grateful to the Secretary of State, and to Mr Pobjoy on his behalf, for the obvious care taken in assisting the court in this important matter and for doing so in a manner which has achieved the agreement of all parties.

Given the central prominence of them to the development of any guidance, I propose to set out Mr Pobjoy’s submissions in some detail.

The Secretary of State [‘SoS’], in common with all parties, considers that the issue of service on a person who is resident in a refuge should be considered by the Family Procedure Rule Committee. This is obviously right and I will make a formal request for the Rule Committee to take the issue up. The focus of the SoS’ submissions was therefore upon what provision may be made in the interim, under the existing rules. By the end of the hearing it was, however, largely accepted that the current rules go a long way to providing a workable solution and that the proposed interim measures may, once considered by the Rule Committee, provide the basis for practice in the longer term.

The SoS’ submissions start from the basis that disclosure and location orders, which are typically the category of orders made to identify the whereabouts of a child, normally require disclosure of information to a court or a court officer, rather than to an applicant. Arrangements regarding the service of such orders should therefore ensure that the confidential and sensitive nature of information regarding location should be preserved. Reliance is placed on Family Law Act 1986, s 33:

In similar terms, CACA 1985, s 24A(1) provides:

Where a child is a ward of court, FPR 2010, r 12.39 provides that:

The general procedure regarding service in proceedings before the Family Court, or in the Family Division of the High Court, is set out in Part 6 of the FPR 2010; there is no difference in the procedure of these two courts in this respect. In addition, specific rules governing service in particular circumstances are set out in other parts of the FPR. There are no specific rules in the FPR or elsewhere which regulate the service of orders or other documents on those residing in refuges.

The rules in FPR 2010, Part 6 apply to the service of documents except where: (i) another Part of the FPR makes different provision, or (ii) the court directs otherwise [FPR r.6.1]. The court therefore retains discretion to direct a particular means of service on the facts of any given case.

FPR, r 29.1 separately provides that a party is not required to reveal their home address or other contact details, or the address or other contact details of any child, unless the court directs otherwise.

As to the default provisions (i.e. where there is no applicable specific provision in another part of the FPR and the court does not make a bespoke direction regarding service), Mr Pobjoy submitted that FPR rr.6.23-6.39 apply to the service of all documents in the jurisdiction other than applications for a matrimonial order or civil partnership.

Insofar as is relevant to the issues in the present case, FPR rr.6.23-6.39 include the following rules:

The provisions with regard to alternate arrangements for service in FPR, rr 6.19 and 6.35 is clearly of importance in the context of service upon a refuge resident. FPR, rr 6.19 and 6.35 expressly confer a broad discretion on the court to authorise service by an alternative method or at an alternative place where there is “good reason” to do so. These provisions are clearly “broadly crafted” and permit of any alternatives to the ordinary rules for service that a court may direct: HC v FW (Financial Remedies: Assessment of General and Special Needs) [2018] 2 FLR 70 (Cobb J at paragraph 7). An alternative method or place of service may be authorised by the court either at the point of making the order, or after the event: see, e.g., AAZ v BBZ and Ors [2016] EWHC 3234 (Fam), (Haddon-Cave J at paragraphs 124-127). The procedure for making an application for alternate service under FPR rr.6.19 and 6.35 is set out in Practice Direction 6A, paragraphs 6.1-6.4.

The circumstances where a court has found such a “good reason” to exist have previously included the following (in each case, the court having authorised an alternative method or place of service after it had been utilised):

Mr Pobjoy submitted that the case law confirms that a court will authorise alternative arrangements for service where it is satisfied that, notwithstanding the adoption of an unauthorised method/location of service, everything was done to bring the relevant materials to the respondent’s attention.

At the conclusion of this survey of the procedural landscape, Mr Pobjoy told the court that the SoS considers that a court may make an order for alternative means or location of service in respect of those residing in refuges on the basis that residence in a refuge is a “good reason” for doing so, provided that steps are taken to ensure the order is brought to the respondent’s attention, as occurred in the cases to which he had referred.

The SoS’ primary position is that the present arrangements under FPR, Part 6 permit the court to direct an alternative form of service, whether by an alternative method or at an alternative place, where it considers that there is good reason for doing so. The rules in Part 6 are flexible and allow sufficient variation to accommodate cases where it is thought that a party is residing in a refuge.

When approaching the issue of service, the court will have to balance, as competing considerations, the need to ensure confidentiality against the need to achieve effective service. In cases of urgency, or where there is a need to draw a penal notice to the attention of the recipient of service, the need to ensure effective service is likely to be heightened.

The SoS proposed that, where the person to be served may be residing at a refuge, service may be undertaken as follows by:

In considering arrangements for service, the court will no doubt consider proportionality and the need to meet the overriding objective of dealing with a case justly [FPR, r 1.1(2)].

It was a letter to Morgan J, prepared by Dr Charlotte Proudman, counsel for the three intervening women’s organisations, which first brought the general issue of service into focus in this case. The court is grateful to Dr Proudman for doing so and for her additional submissions on behalf of the interveners.

Before turning to the detail of any interim arrangements, Dr Proudman reminded the court of the important role refuges play by protecting the security of women through the provision of confidential addresses and rigorous security measures. Safety measures include the use of a PO Box, keeping doors and ground floor windows locked at all times, checking the identity of visitors, turning off location settings on phones, and taking other steps to ensure security. In addition to the provision of a physically safe haven, refuges provide an environment which is staffed by individuals who are psychologically well informed and, in particular, trauma aware.

Dr Proudman set out the following specific considerations which apply where a party is residing at a refuge. This is a useful list and it is reproduced here in full so that it may be used as an aide memoire by courts considering service in these circumstances:

In common with the other parties, Dr Proudman supported the SoS’s submissions and agreed with the proposed interim arrangements subject to the following observations:

Dr Proudman also submitted that in a true emergency personal service by a court bailiff or the Tipstaff at the refuge residential address could be sanctioned as ‘a last resort’ where, in an exceptional case, there was a need for immediate service. Such circumstances, it was suggested, would be extremely rare.

If the court does order personal service at a refuge, then Dr Proudman submitted that it would be good practice for the police or the Tipstaff to make the CEO of the refuge aware of the intention to do so on the basis that the CEO must not inform the resident in advance.

In many cases there will be a need to ensure that any documents that are served have been translated into the appropriate language if that is required. The responsibility for doing so is the applicant’s and not that of the refuge or the respondent.

Where personal service is ordered on a woman who has sought protection in a refuge, this should be occasioned by, or supported by, a female bailiff or woman police officer.

Dr Proudman stressed that, whatever the arrangements may be, the address of a refuge must never be disclosed to an applicant or to their solicitor in any circumstances. This is so even if undertakings are offered as mistakes may still occur and the consequences of disclosure of the address, not only for the respondent but also for any other present or future residents, are wholly disproportionate to any benefit.

Dr Proudman rightly drew attention to the vulnerability provisions in FPR, Part 3A and PD3AA, together with the Domestic Abuse Act 2010, s 63. Where a respondent is residing in a refuge there must be a presumption that they are a complainant, if not a victim, of domestic abuse and must therefore be regarded as a vulnerable party by the court. In those circumstances the court is under a duty to consider what participation directions are required. Participation directions, it was submitted, are not limited to the giving of evidence, but extend to participation throughout the proceedings and should include questions of service.

With respect to the conduct of the present proceedings, Dr Proudman drew attention to the fact that, in the orders made to one refuge, two members of staff were named and, to another refuge, one member of staff was named. In each case the named staff member was required by the order to disclose information about the whereabouts of the respondent and child. The order required the staff member to state the address of the location where the child was residing, and thus give out the address of the refuge. In email correspondence, the applicant’s solicitors had stated that the refuge staff would be at risk of being imprisoned for contempt of court. It was submitted that individual staff members should never be named in a court order.

Submissions on behalf of the refuges drew particular attention to the specific vulnerability of migrant women who, it is said, experience ‘intersectional inequalities’ in the sense that they are likely to experience multiple layers of inequality stemming from discrimination based not only on being women, but also as a result of other characteristics such as race, immigration status, language barriers and no recourse to public funding.

On behalf of the parents Mr Michael Gration KC, leading Mr Matthew Persson for F and Jasvir Degun for M endorsed the approach described by the SoS as developed by Dr Proudman. In addition, the following points were made:

In particular, Mr Gration suggested that a solicitor would be likely to need the address in order to instruct private process server to effect personal service at a refuge, if a bailiff was not available to do so. In response Dr Proudman submitted that if personal service at refuge is required then this should be undertaken by the police or the Tipstaff, and not by a private process server.

Drawing these matters together, and pending more detailed consideration by the Family Procedure Rule Committee, the following guidance should be applied when court orders and other documents must be served on an individual who is thought to be residing in a refuge.