There are numerous tools available to protect parties from the actions of former partners and spouses, with varying degrees of success. Non Molestation Orders can provide powerful protection; they can, in suitable cases, be supplemented by injunctions obtained under the Protection from Harassment Act 1997 or by restraining orders imposed by the criminal courts. The family court can also make Prohibited Steps Orders restraining a party from taking specified steps. However, does an allegedly malicious enforcement of such an order itself amount to harassment?
This was the scenario considered by the Court of Appeal in the recent case of Crawford v Jenkins  EWCA Civ 1034. Both parties are legally qualified, and appear to have been engaged in an acrimonious separation. In 2003 orders for residence and contact were made, together with an order that the Father was not to attend the children’s school during the week. No power of arrest attached to this order. In 2006 the Father was convicted of an offence under the PfHA 1997 and a restraining order was made. This prohibited him from contacting the Mother or doing certain other things, but did not provide that he could not go to the school.
On a Saturday in 2009, both parties attended an open day at their daughter’s school. The Mother objected to the Father’s presence. She contacted the police. He was arrested for breach of the 2003 Order. When it was pointed out that there was no power of arrest, he was re-arrested for breach of the 2006 order. He was later released, with no prosecution ensuing, presumably because he was not as a matter of fact in breach of the 2006 order. He sued the police and the Mother for false imprisonment (the police settled), and also brought a claim against the Mother under the PfHA 1997, arising out of the complaint to the police and two text messages. The Mother contended immunity from suit in respect of the statements given to the police and that the statutory defence in section 1(3)(c) of the 1997 Act was made out, as the pursuit of the course of conduct complained of was reasonable in the circumstances. The Judge at first instance agreed. The Father appealed.
Argument before the Court of Appeal centred on whether the immunity from suit rule applied in circumstances where the allegation was malicious procurement of false imprisonment, rather than defamation (to which the relevant authorities related). The Court of Appeal distinguished between cases where prosecution followed, and where it did not. In the former, a remedy should exist. However in the latter, the person responsible for the arrest (i.e. the police) can answer for the false imprisonment, and the policy behind the witness immunity from suit rule applied, as there was no abuse of the court process, no such process being invoked. The policy of the immunity rule also applied as much to harassment cases as to defamation, and in any event the statutory defence was made out.
The above is food for thought in respect of the complex interaction between the various statutes and policy areas and fair warning to the litigious not to embark upon retributive actions notwithstanding the maliciousness of a report to the police.