A Non-Molestation Order is a type of injunctive order issued by the Courts of England and Wales to protect someone who has experienced domestic abuse.
A Non-Molestation Order prohibits the person named in the Order (the ‘Respondent’) from harassing, intimidating, threatening, or using violence against the person who sought the order (the ‘Applicant’), or any relevant child/ren.
The main difference between Non-Molestation Orders and Restraining Orders (which are predominantly made by the Criminal Court using powers granted by the Protection from Harassment Act 1997), is that to be eligible to apply for a Non-Molestation Order, an Applicant and Respondent must be ‘associated persons’.
Whilst the definition of an ‘associated person’ is wide, such persons are defined by The Family Law Act 1996 and this relationship must be identified within the application.
The Court cannot accept an undertaking (a serious promise given to the Court by a Respondent not to do something) instead of making a Non-Molestation Order where a) the Respondent has used or threatened violence against the Applicant or relevant child and b) where it is necessary to make a Non-Molestation Order to ensure that any breach may be punishable as a criminal offence.
Non-Molestation Orders should be tailored depending on the circumstances of the application but can include provisions such as preventing the Respondent from contacting the Applicant (directly or indirectly including via social media and messaging services etc); coming within a certain distance of the Applicant’s home or workplace, or a relevant child/ren’s school/nursery.
Such Orders also prohibit the Respondent from instructing or encouraging any third party from doing any of the things they are prohibited from doing.
Whilst a Non-Molestation Order is intended to provide a level of protection to the Applicant (and any other person/s named within the Order), the Applicant’s need for protection must be balanced with the Respondent’s rights and accordingly, the provisions of any Order must be proportionate.
In exceptional circumstances, a Non-Molestation Order can be issued on a ‘without notice’ basis (also referred to as ‘ex-parte’) against the Respondent if the Court is satisfied that it is ‘just and convenient’ to make such an Order.
Non-Molestation Orders made without notice to the Respondent should not prohibit a Respondent from returning to their home or place of work etc without significant justification and very careful consideration by the Court.
When deciding whether to make an Order ‘without notice’ the Court needs to consider all of the circumstances including any risk of significant harm to the Applicant or relevant child if the Order were not made immediately; whether the Applicant would otherwise be deterred or prevented from pursuing the application and/or where there is reason to believe that the Respondent is aware of the proceedings, but is deliberately evading service and delaying the application would be prejudicial.
A ‘without notice’ Non-Molestation Order is usually made on a temporary basis and is subject to review at a later hearing when both parties can attend and present their cases to the Court. Wherever possible, return date hearings should take place within 14 days of the initial hearing.
Non-Molestation Orders can be made for a fixed period, such as six months or a year, or until the Court decides otherwise.
Prior to its expiration, a Non-Molestation Order can be varied, extended or discharged following an application to the Court.
Once granted by the Court, Non-Molestation Orders need to be personally served on the Respondent so that they have notice of the Order.
If, once served, the Respondent breaches any provisions of the Order, he/she may be arrested and charged with a criminal offence. This is because the act of breaching a Non-Molestation Order is, itself, a crime. It is for this reason that a power of arrest can no longer be attached to a Non-Molestation Order.
For this reason, Non-Molestation Orders are served on the Applicant’s local police force with a request that the Police National Computer is updated with specific details of the Order.
If criminal proceedings are not pursued following a breach of the Order by the Respondent, a Non-Molestation Order can also be enforced through civil proceedings, which could result in a fine or term of imprisonment.
If you need to obtain a Non-Molestation Order, it is crucial to seek the advice of an experienced family law solicitor who can guide you through the legal process and make sure your rights are protected.
We are dedicated to approaching each client as a unique individual, ensuring your case receives the highest level of compassion and confidentiality. Reach out to us today to arrange a consultation with one of our skilled family law and domestic abuse solicitors.
