What is a Non-Molestation Order?
We frequently receive inquiries from individuals concerned about their safety due to the behavior of a partner, ex-partner, family member, or carer. In such cases, a Non-Molestation Order can be sought to protect them and regulate the behavior of the alleged perpetrator. A judge will determine if the circumstances justify the order, its duration, and the restrictions it imposes.
If there is violence or domestic abuse, it is a criminal offense and must be reported to the police. While the police may suggest obtaining a civil injunction, such as a Non-Molestation Order, they are responsible for addressing criminal behavior. Domestic abuse can involve controlling, coercive, threatening, degrading, or violent actions, including sexual violence, whether as isolated incidents or repeated patterns.
Non-Molestation Orders are occasionally misused for personal gain, such as influencing child arrangements, accessing legal aid, or other benefits. If you are the respondent in such cases, you will have the opportunity to present your case, and judges may discharge the order or accept undertakings if appropriate.
While not a solution for all domestic abuse cases, Non-Molestation Orders are often effective deterrents. Breaches are serious offenses and should be reported to the police immediately, as enforcement and prosecution fall under their jurisdiction.
To apply for a Non-Molestation Order or Occupation Order, you must complete Form FL401. These applications are often made together when relevant. The application must include:
- A witness statement verified by a statement of truth.
- A draft Non-Molestation Order prepared by the applicant.
There is no court fee for submitting an application for either a Non-Molestation Order or an Occupation Order.
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.
Who Can Apply for a Non-Molestation Order
Applications for a Non-Molestation Order can be made by associated persons. Unless clearly proven otherwise, it is generally presumed that parties are associated. A person is considered associated with another if they:
- Are or have been civil partners or married to each other.
- Are or were cohabitants (living together as a couple).
- Have or have had an intimate personal relationship.
- Live or have lived in the same household (excluding employer/tenant/lodger/boarder relationships).
- Are relatives.
- Have agreed to marry or enter a civil partnership.
- Share a connection through a child (e.g., as parents, parental responsibility holders, adoptive parents, or relatives of the child or their parent).
- Are parties to the same family proceedings.
Return Hearings & Contested Hearings
When a Non-Molestation Order is granted at a without notice hearing, it does not take effect until it has been served on the respondent.
A return date hearing is usually scheduled by the court, or the respondent may need to request one to present their arguments against the order. At this hearing:
- The respondent can present their case, and the court may dismiss the order in favor of an undertaking or cross-undertakings.
- The court may schedule a full contested hearing to examine the allegations in detail, with sworn evidence. Until then, the Non-Molestation Order remains in force.
- In some cases, the order may be dismissed at the return hearing without requiring undertakings if the court finds it unnecessary.
If the respondent chooses not to contest the order, it remains in effect for the specified duration.
Undertakings
At an on-notice hearing, where both parties are present, the court may consider whether an undertaking (a formal promise to the court) is a suitable alternative to a Non-Molestation Order if the respondent disputes the allegations.
- An undertaking does not imply the respondent has admitted wrongdoing or that the court has found them at fault.
- Cross-undertakings, where both parties agree not to act against each other, are commonly used in such cases.
- Breaching an undertaking carries the same consequences as breaking a court order and can result in imprisonment.
Breaching a Non-Molestation Order
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).
