On 12 January 2026 new Presidential Guidance on Non-Molestation Orders under the Family Law Act 1996 came into force, replacing the 2023 Practice Guidance. It is the most consequential practice update in this area for several years and must be part of every family practitioner’s toolkit. (Courts and Tribunals Judiciary)
Why this matters now
Applications for protective injunctions continue to rise, placing pressure on courts’ resources. The updated Guidance, published alongside best practice material from the Family Justice Council, is designed to improve the quality, clarity and consistency of applications and orders. (Courts and Tribunals Judiciary)
1) Without Notice Orders: Refined but Still Urgent
The statutory test in s.45 FLA 1996 is unchanged, but judicial expectations are now clearer:
- The court’s assessment must reflect a modern understanding of domestic abuse, including coercive control, psychological, emotional and economic abuse under the Domestic Abuse Act 2021. (Courts and Tribunals Judiciary)
- A without notice order is only justified where it is just and convenient in all the circumstances. Exceptional does not mean uncommon, but absence of notice must be justified on the facts. (Courts and Tribunals Judiciary)
- Particular care is required where exclusion from home, workplace or other essential locations is sought. (Courts and Tribunals Judiciary)
Practitioners must therefore:
- Set out evidence of immediate risk and why notice would increase the risk, deter the applicant, or prejudice substituted service approaches;
- Avoid boilerplate assertions and demonstrate why urgency is genuine.
2) What Happens on Issue
The Guidance sets out three clear pathways once a without notice application is issued:
- Order on the papers — if evidence meets the test, grant and list a return within 28 days.
- Refuse on the papers — refuse and list on notice within 21 days, with a right to reconsideration within 2 working days (to be listed within 5).
- List a without notice hearing — typically within 1 working day, particularly where litigants in person require support. (Courts and Tribunals Judiciary)
The overarching theme is judicial scrutiny over process — not administrative issuance.
3) Return Dates: Discipline and Certainty
The renewals framework is stricter:
- A fixed return date must be set on the face of a without notice order. The often-seen phrasing “liberty to apply” is no longer an acceptable substitute. (Courts and Tribunals Judiciary)
- The new Annex 2 (FL435) response form must accompany every without notice order to invite the respondent to say, before the return date, whether they consent, do not oppose (without admissions), or oppose. This pre-hearing indication is intended to cut down unnecessary attendance. (Courts and Tribunals Judiciary)
- At return dates, courts are encouraged to explore continuation without findings of fact where appropriate, but undertakings should not be accepted if violence or threats have been used or are likely to recur. (Courts and Tribunals Judiciary)
4) Drafting Standards: Precision Required
The Guidance makes clear what good orders look like:
- Every non-molestation order must have a fixed end date; a return date alone is insufficient. (Courts and Tribunals Judiciary)
- Vague prohibitions — such as “pestering”, “molesting” or “harassment” — are discouraged. Orders must be clear, proportionate and enforceable. (Courts and Tribunals Judiciary)
- Geographic exclusions should name specific roads or clearly defined areas. (Courts and Tribunals Judiciary)
- Orders must expressly inform respondents of their right to apply to vary or set aside under the rules, not merely offer “liberty to apply”. (Courts and Tribunals Judiciary)
An order that cannot be enforced in practice serves neither client nor court.
5) Evidence and Enforceability
The Guidance emphasises that:
- Any written evidence relied on must be identified directly in the order. (Courts and Tribunals Judiciary)
- Oral, photographic or video evidence should be reduced to writing and served. (Courts and Tribunals Judiciary)
- Orders should include applicant and respondent dates of birth and the respondent’s contact details where possible — critical for enforcement. (Courts and Tribunals Judiciary)
6) Service: Personal First
Service expectations are firm:
- Personal service remains the starting point; substituted or messaging service is a last resort with judicial approval and evidence of failed personal service. (Courts and Tribunals Judiciary)
- Bailiff or process server certificates (FL415) must be fully complete, legible and timely. (Courts and Tribunals Judiciary)
- Where a without notice order is continued unaltered at return date and the respondent was personally served, email or post may suffice; amended orders typically require fresh personal service. (Courts and Tribunals Judiciary)
- Recording on the face of the order that the respondent attended and understood terms assists enforcement. (Courts and Tribunals Judiciary)
7) Co-Ordinating Parallel Proceedings
The guidance is explicit: where Family Law Act and Children Act proceedings overlap, early case management is essential to avoid duplication. Courts should use factual findings from one forum to inform PD12J considerations in the other where appropriate. (Courts and Tribunals Judiciary)
The Bottom Line
The 2026 Guidance is not cosmetic:
- Urgency must be justified, not assumed.
- Drafting must be precise and enforceable.
- Orders must have clear timeframes.
- Process must be purposeful and disciplined.
Practitioners representing applicants must prepare evidence that clearly articulates risk and urgency in modern abuse terms. Those representing respondents must use the Annex 2 process and procedural safeguards to narrow disputes early and properly challenge what is unjustified.
Handled well, this Guidance should streamline hearings, sharpen advocacy and ensure protective orders are proportionate, clear and enforceable.
For assistance in this area of law, contact clerks@anvilchambers.co.uk