Clarification of Guidance on Granting Non-Molestation Orders Without Notice

 I regularly represent applicants and respondents in the Kent family courts for non-molestation orders. My last case was a without notice non-molestation order application in the Canterbury Family Court.


A recent case has clarified the guidance that courts should apply when considering whether to grant a non-molestation order without notice.

DS v AC [2023] EWFC 46, involved a couple who began a relationship in October 2021. The relationship became problematic over time, with the applicant alleging that the respondent became increasingly controlling and demanding. The applicant ended the relationship in September 2022.

The applicant applied for a non-molestation order without notice, but her application was refused by a district judge. The applicant appealed to the High Court, where her application was again refused.

In her judgment, Lieven J set out the principles that courts should apply when considering whether to grant a non-molestation order without notice. These principles are:

1.     whether there is a risk of significant harm attributable to the respondent if the order is not granted immediately, s.45(2)(a),

2.     whether the applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b)

3.     a without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party;

4.     The court should use its powers under the FLA with caution, particularly at a one -sided hearing, or on a paper consideration without the other party having notice;

5.     “molestation” does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court;

6.     the primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end;

7.     there does not have to be a positive intent to molest.


Lieven J also noted that non-molestation orders should not be granted where the evidence suggests that there is some upset at the end of a relationship, and little or nothing to suggest that the conduct complained of would amount to “molestation”.

This case provides helpful guidance for practitioners who are seeking to obtain a non-molestation order without notice. It is important to ensure that all of the relevant principles are considered before making an application, and that the applicant has made full and frank disclosure of all relevant information.