Non Molestation Order
Why a Non-Molestation Order?
We often have queries from people who are in quite awful situations where a partner or ex-partner or family member or carer's behaviour towards them is a cause of concern for that persons safety. A non-molestation order can be acquired in the right circumstances to keep that person safe from harm and control the behaviour of the alleged perpetrator. A judge will decide if the circumstances require such an order, how long it should be in place and what the restrictions will be on the person subject to this order.
If there is violence or domestic abuse then please understand that is a crime and it should always be reported to the police. The police will quite often advise that a civil injunction should be obtained to prevent further such behaviour if they are unable to take any further action at that time, the civil injunction is known as a non-molestation order.
Domestic abuse can be an incident, or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual violence. It must be repeated that the police should always be the first call if you are subject to any of these acts.
There are times where this civil injunction is applied for inappropriately in an effort to try to gain advantage in children proceedings, or to access legal aid, or out of vindictiveness, immigration or social housing purposes are some other examples. If you are the respondent in such a situation it will be a huge shock but you will be given an opportunity to put your case forward, should you wish to do so. A judge will quite often if presented with evidence that supports it, discharge a non-molestation order, or accept undertakings or cross-undertakings if appropriate.
A non-molestation order is not a panacea in all situations of domestic abuse and when violence is involved but very often it can be extremely effective as a deterrent. If there are breaches then the police should be informed immediately, they are then expected to arrest the offender as it is the police and then the Crown Prosecution Service (CPS) who are responsible for the prosecution of such breaches. The consequences for an offender are serious.
What is a Non-Molestation Order?
A non-molestation order is an order than one party does not molest the other, molestation is not defined in the Family Law Act 1996 but it does include conduct that harasses or threatens the applicant. It is an order that someone should not commit a crime against another, as many of the acts that would constitute molestation are crimes, particularly in the Protection from Harassment Act 1977.
Without Notice Application (ex-parte)
Non-molestation orders can be made 'without notice' (ex-parte, without the other party’s knowledge). Generally the courts take a cautious approach regarding the safety of an applicant at a without notice hearing, they will regularly make a non-molestation order on what they have been informed solely by the applicant, if recent physical violence is alleged.
If it is an on notice hearing where both parties are in attendance then there is an opportunity to consider whether an undertaking (formal promise to the court) is more suitable if the respondent does not agree with what has been said about them. This promise to the court (undertaking) does not mean that the respondent has admitted anything or that the court believes s/he has done anything wrong. Cross-undertakings where both the applicant and the respondent promise not to commit an act against each other are relatively common. Breaking an undertaking to the court has the same effect as breaking a court order and may lead to prison.
Return hearing & Contested hearings
After a without notice hearing where an applicant has been successful in the application for a non-molestation order then the order is not effective until served upon the respondent. A return date hearing is normally listed by the court or the respondent may have to request a return date for a hearing so as to inform the court of the arguments against the necessity for a non-molestation order. At this return date the respondent can put their side to the court and fairly often the non-molestation order can be dismissed in favour of an undertaking or cross-undertakings. It could be listed for a full contested hearing where the allegations veracity can be determined by the court with sworn evidence being heard, in the meantime the non-molestation remains in force. Sometimes the non-molestation order can be dismissed at the initial return hearing without the necessity for undertakings if it is agreed or the court believes it is not necessary. If the respondent decides not to contest the order, it remains in force for a particular period of time.
Breaches of Non Molestation Orders
The breach of a non-molestation order is a criminal offence with a possible prison sentence of up to five years. If the order is breached then an arrest may follow, charges brought before a criminal court. This would be the responsibility of the crown prosecution service (CPS).
Who can apply for a Non Molestation Order?
Applications can be made for a non-molestation order by associated persons, the emphasis being that unless it was clear that the parties were not associated, it should be presumed that they are. A person is associated with another if they are or have been either civil partners or married to each other; cohabitants or former cohabitants (living together as a couple); they have or have had an intimate personal relationship with each other; they live or have lived in the same household, other than merely by reason of one of them being the other’s employee/tenant/lodger or boarder; they are relatives; they have agreed to marry one another or enter into a civil partnership; in relation to any child, a parent of a child or someone who has parental responsibility or adoption or natural parent of the child or a parent of the natural parent or a person with whom the child has been placed for adoption; they are parties to the same family proceedings.
The application needs to be accompanied by a witness statement verified by a statement of truth. A draft non molestation order is also required to be provided by the applicant.
There is no court fee for an application for a non molestation order or occupation order.
If you are on a low income or on benefits you may be eligible for public funding in the form of legal aid which may pay for all of your costs through proceedings or some of it. There may be contributions that you have to make depending on the financial circumstances. We would always recommend that if you might qualify because of your financial situation, that you contact a family law adviser in your area who offer a legal aid service.
You can check your eligibility for legal aid at the Check if you can get Legal Aid government site.
We do not offer a legal aid service, you can however, find a legal aid adviser at this government link, called Find a Legal Aid Adviser or Legal Aid Mediator.