How has the Covid-19 pandemic affected service of applications and Orders under the Family Law Act 1996? (The welcomed introduction of Practice Direction 36U)
Part 10 of the Family Procedure Rules (FPR) set out the rules governing the service of applications and Orders under Part 4 of the Family Law Act 1996 (FLA 1995), most notedly Non Molestation Orders and Occupation Orders. Rule 10.3(1) of the FPR provides that the Applicant must personally serve applications and any supporting evidence on the Respondent. However, the court do have the power to authorise alternative methods of service (for example, electronic service).
Rule 10.6(1) of the FPR governs the service of Orders. This Rule provides that the Applicant must serve the Order on the Respondent personally. This Rule appears absolute and does not give the court discretion to direct alternative methods of service.
Unfortunately since the Covid-19 pandemic, practitioners have experienced difficulties with the implication of these Rules governing service. During the lockdown period, the number of deaths as a result of domestic abuse tripled, and calls to domestic abuse organisations soared. This resulted in a significant increase in the number of people seeking urgent protection of the family court.
However, the governmental restrictions including the ‘stay at home’ rule caused issues when serving Orders under the FLA 1996. Personal service became impractical. Judges had no option but to grant alternative service and personal service was only to be used as a last resort. This of course was a complete contradiction to the Rules in Part 10 of the FPR.
In light of this, the acting President of the Family Division, Theis J, issued a new pilot Practice Direction making temporary changes to the Rules in Part 10 of the FPR. Practice Direction 36U came into force on 3rd August 2020. Under this Practice Direction, the court may direct an alternative method of service of both applications and Orders under Part 4 FLA 1996. The Practice Direction therefore temporarily amends Part 10 of the FPR. However, the Practice Direction does not have retrospective effect.
The introduction of Practice Direction 36U has been welcome by practitioners as it is considered to be a positive development of the law. Difficulties often arise with personal service when the Respondent cannot be located and victims often remain unprotected. However electronic methods are a more efficient way of effecting service, and are less timely and costly. The change also reflects the ever-growing reliance on technology within modern society. It should also be noted that the Crown Prosecution Service do not require evidence of personal service before deciding to prosecute for breaches of Non-Molestation Orders. It is therefore argued that this movement to alternative methods of service is a logical change.
However, Practice Direction 36U is only a temporary measure and will cease to have effect on 3rd May 2021. It has therefore been argued by practitioners that the temporary changes brought about by Practice Direction 36U should be permanently implemented and the Rules under Part 10 of the FPR should be amended to allow alternative service of both applications and Orders under Part 4 FLA 1996.