In a recent case heard in the Family Court sitting at Birmingham, Mrs. Justice Lieven provided a useful overview of the applicable principles that a court should apply when considering whether to grant a non-molestation order on a without notice basis.
The case citation is DS v. AC  EWFC 46 and the facts of the case were fairly unremarkable. The parties had started a relationship in October 2021. The applicant described how the relationship thereafter became problematic with a number of arguments but the applicant did not allege verbal or physical abuse. Her case was based upon alleged controlling behaviour from the respondent. She alleged that the respondent became increasingly demanding of her by telephoning and texting her. The judge considered that this was “a fairly typical account of a failing relationship”. In September 2022 the applicant started to work in the respondent’s business and she felt that the respondent became even more demanding of her. She finally ended the relationship by WhatsApp message in the same month. The parties then entered into a financial dispute within the context of the business relationship and there were a limited number of email exchanges between the parties in or about October 2023.
On 8th November 2022 the applicant (acting as a litigant in person) made a without notice application for a non-molestation order. The application was refused at a hearing before a district judge on the 8th December and set down for an on notice hearing eight days later. The applicant did not attend that hearing but later applied to reinstate the application which eventually, and unusually, came before Lieven J on 14th March 2023.
Lieven J agreed with the district judge that there had been no reason for making a without notice order and noted that there had been no contact made by the respondent in the three week period preceding the application being made. Furthermore, the High Court judge felt that upon reviewing the evidence there was no basis for an order being made at all. Whilst she accepted that the respondent had sent the applicant an excessive number of texts and emails at the end of the relationship (at least one of which was angry and hurt), there was no proper basis for the court to intervene. She observed (at paragraph 26 of the judgment) that:
“the conduct has to be sufficient to justify the intervention of the court. 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 the conduct complained of would amount to “molestation”.
Of particular use to practitioners is the summary in paragraph 23 of the judgement of the principles which the judge extracted from the provisions of the Family Law Act 1996 and caselaw applicable to cases of this nature. These were:
- On a without notice application the court must consider whether there is a risk of significant harm attributable to the respondent if the order is not granted immediately, s.45(2)(a),
- And whether the applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b)
- A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R  EWFC 48 at 
- The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v Rat ;
- “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, Horner v Horner 4FLR 50 at 51G;
- The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child)  EWCA Civ 1889;
- There does not have to be a positive intent to molest, Re Tat .
In respect of the last point, the judge went on to say that the test is not a wholly subjective one whereby the applicant simply has to feel distress to justify the making of the order. The conduct has to be of a nature or degree that justifies the intervention of the court.
It is to be hoped that district judges will now have this judgement at the forefront of their minds when considering the merits of similar applications in the future.