Street ban order ‘was Kafkaesque’

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Published: Monday 15th December 2014 by The News Editor

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A High Court judge has suggested that a case in which a father of six was barred from entering the street where he lived as a result of legal proceedings he knew nothing of had Kafkaesque overtones

Mr Justice Peter Jackson said the man at the centre of the family court litigation, whom he named only as Mr R, could have been forgiven for feeling like Josef K – the protagonist in Franz Kafka’s 1925 novel The Trial.

He returned home from work as normal on a Friday evening in June and was served with an order – obtained by his wife that day – which forbade him from entering the street where they had lived for more than a decade, said the judge.

Detail of the case has emerged in a ruling by Mr Justice Peter Jackson – who sits in the Family Division of the High Court in London – following the latest round of the litigation. No-one involved was identified.

Mr R’s wife – named by the judge as Mrs R – consulted solicitors and complained that she was a victim of domestic abuse, said Mr Justice Peter Jackson.

A deputy district judge subsequently made an order at a family court hearing – which Mr R knew nothing of and which could not have lasted for “more than five minutes” – barring him from entering the street where he lived.

Mr Justice Peter Jackson has raised a number of concerns about the litigation and said 11 steps in the legal process had been “wrong”.

The judge said Mr R had tried to challenge the order but because of an “insignificant procedural failing” his complaint had not been heard.

He said court powers had been used in a draconian fashion – and said at one point Mr R had been arrested.

Orders made had subsequently been set aside after an appeal – and undertakings had been given, said the judge.

“In a nutshell, on the evening of Friday 20 June 2014, Mr R returned from work as normal to the home at No. 23 X Street where he lived with his wife, Mrs R, and their six children,” said Mr Justice Peter Jackson.

“Soon afterwards, he was served with a family court order obtained by Mrs R that day which, amongst other things, forbade him with immediate effect from entering or attempting to enter X Street.

“The order had been made at a hearing of which he had no notice in proceedings of which he was unaware.

“Mr R duly vacated the property and, having done so, attempted over a period of months to challenge the order through proper court procedures.

“However, on the basis of an insignificant procedural failing, the court refused to hear his challenge.

“In the meantime, he was arrested for an innocuous breach of the original order to which he pleaded guilty without receiving legal advice and in consequence acquired a criminal record.

“And as if that were not enough, the effect of the original order was to deprive him of contact with his children for fully five months.”

He added: “All in all, Mr R could be forgiven for feeling like the hapless protagonist in Kafka’s ‘The Trial’.”

The judge said the order barring Mr R from entering his street should not have been made.

And he said a judge faced with an application of which one side was unaware should always begin by asking “why?” not “why not?”

“(Mr R) was given no effective opportunity to challenge it within a reasonable time,” the judge added. “The court’s case management powers were then used in a draconian way that compounded the injustice to an unrepresented party.”

He went on: “When the matter came on for appeal, the orders were set aside. The matter was then dealt with by way of undertakings.”

Mr Justice Peter Jackson said he had allowed Mr R’s appeal – and set aside previous orders – on the basis that 11 steps in the legal process had been wrong.

The judge said a “without notice application” should not have been made and a “without notice order” should not have been granted on evidence available.

He said the order preventing access to the street had been “unnecessary and disproportionate”.

And he said the case highlighted “important principles”.

Published: Monday 15th December 2014 by The News Editor

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