What is a Non-Molestation Order?
A Non-Molestation Order is a court order designed to protect the applicant and/or child from abuse by the respondent. Although the term “molestation” is not defined in the Family Law Act 1996, it can be interpreted as:
- Physical harm.
- Harassment.
- Threats.
- Intimidation.
- Unwanted communication.
A Non-Molestation Order can also be zonal, preventing the respondent coming within a certain distance of where the applicant lives, their workplace or another location.
A Non-Molestation Order comes with a power of arrest. This means any breaches should be reported to the police immediately and the breaching party may be arrested.
The court has the power to make a Non-Molestation Order of its own motion, if necessary.
Who can apply for a Non-Molestation Order?
To apply for a Non-Molestation Order, you must be legally associated with the respondent. Under section 62(3) of the Family Law Act 1996, a person is associated with another person if:
- They are or have been married to each other;
- They are cohabitants or former cohabitants;
- The live or have lived in the same household, otherwise 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 (whether or not that agreement has been terminated);
- In relation to any child, they are both persons failing within subsection (4); or
- They are parties to the same family proceedings (other than proceedings under this part).
Section 62(4) provides:
A person falls within this subsection in relation to a child if –
- He is a parent of the child; or
- He has or has had parental responsibility for the child.
How do you apply for a Non-Molestation Order?
An application must be made to the court using form FL401. Applications can be made:
- On notice, where the respondent is made aware of the application.
- without notice, where the court considers the application urgently, without informing the respondent.
A supporting statement setting out why a Non-Molestation Order is required should be sent with the application form, setting out the complaints made.
How long do Non-Molestation Orders last?
A Non-Molestation Order can be made for a specified period or until further order (Section 42(7) Family Law Act 1996). Typically, the order is made for six months to one year, but an application can be made to extend the order before it expires.
What is the legal test?
When considering whether to grant a Non-Molestation Order, the court will consider the following:
- Whether there is evidence of any molestation(C v C (Non-Molestation Order: Jurisdiction)[1998] 1 FLR 554, FD);
- Whether the applicant (or child) needs protection; and
- Whether, on the balance of probabilities, the judge is satisfied that judicial intervention is required to control the behaviour which is the subject of the complaint (see for example C v C [2001] EWCA Civ 1625).
It is not the court’s intention to punish the respondent. The aim is to provide protection for the applicant and any relevant children. In the event that the applicant cannot satisfy the test, a Non-Molestation Order will not be made.
What is the alterative?
In some cases, undertakings can be used instead of a Non-Molestation Order. An undertaking is a formal legal promise given to the court by the respondent to do or not do certain things. An example could be undertaking not to contact the applicant.
It is important to note the distinctions between undertakings and Non-Molestation Orders, including that undertakings do not carry a power of arrest and a breach of an undertaking is not a criminal offence.
When an undertaking has been breached, an application must be made to court for enforcement or for a Non-Molestation Order.
The court will only accept an undertaking when it is deemed that it will provide adequate protection for the applicant. However, the court cannot force a party to offer undertakings.
For assistance with Non-Molestation Orders, please contact clerks@anvilchambers.co.uk