Applications for Non-Molestation Orders are a staple diet of courts up and down the country. Many of those responding to an application for a Non-Molestation Order are litigants in person, so they do not have the benefit of legal advice. This article is designed to assist those people by setting out what to expect from the process and the factors to be considered. As this article is designed primarily to assist those without a solicitor or barrister available to them, legal language, statute and caselaw will be kept to a minimum. Not everything will be covered within the article, but hopefully it will be a useful overview to those responding to an application for a Non-Molestation Order against them.
What is a Non-Molestation Order?
A Non-Molestation Order, very simply, is designed to protect people from molestation. Molestation is given no particular definition within the legislation; applications can be brought, for example, on the basis of excessive and unwanted communications (texting, emailing, phone calls etc), stalking, harassment or repeated physical abuse. If an order is made, it comes with a power of arrest; that is to say that someone who has an order against them can be arrested if it is alleged that they have breached the order in any way.
An application can be brought against someone else, as long as they are an ‘associated’ person to the applicant. The term ‘associated person’ is defined by law in the Family Law Act s.62(3), but most commonly applications are brought by relatives and ex-partners.
A Non-Molestation Order, if made, will normally prevent the person against whom it is made from doing the following things:
- Using or threatening to use violence against the applicant or encouraging anyone else to do so.
- Intimidating, harassing or pestering the applicant or encouraging anyone else to do so.
- Communicating with the applicant, this can include communicating with them through someone else, but there is generally an exception for communication through solicitors.
- Damaging or destroying property belonging to the applicant or encouraging anyone else to do so.
- Going near where the applicant lives, or anywhere that it is believed the applicant is living.
When a person makes an application for a Non-Molestation Order this is usually accompanied by a brief statement setting out why the order is needed. This statement will set out the allegations (what it is said constitutes ‘molestation’) against the Respondent. The Court will then set the matter down for a first hearing. It is common for applicants to ask for a hearing without letting the respondent know that a hearing is taking place. However, this should only normally be allowed where the allegations are particularly serious, and there is a risk that if the respondent knew the application was being made then they would react in such a way that the applicant would be in danger of retaliation.
At the first hearing, the respondent will be asked whether they accept the order being made or whether they contest the order. If a respondent accepts the order, the order will be made, but the Court will not make findings against them. This means that the order is made, but the Court does not say that the respondent has done anything wrong. For those who do not have the time or the resources to fight the case and think that the order doesn’t prevent them from doing anything they want to do anyway, this can be a way of drawing a line under the litigation. However, the order will be made, and the consequences of any alleged breach will be serious. A standard order will normally last for one year.
Another option is to offer ‘undertakings’. Essentially undertakings are a promise to the court not to do something. Undertakings are often given in the same terms as a Non-Molestation Order. While you cannot be arrested immediately for a breach of undertakings, these are a solemn promise to the Court and the consequences of breach can still be serious. If undertakings are accepted by the applicant and the Court, this will again bring an end to the litigation. Typically, these undertakings are also given for a period of one year. However, some cases, normally those with serious allegations of violence and/or the threat of violence cannot be brought to an end by way of undertakings.
The final option is to fight the case to the end and make the applicant prove what they say happened (the molestation) did actually happen and therefore, the Court should make an order. This will involve a contested hearing, both parties having produced detailed witness statements in advance and being cross-examined, much like in a criminal trial. Since 2022, the parties are unlikely to be able to cross-examine each other. The court will therefore often appoint a ‘Qualified Legal Representative’ to assist with cross-examination, but only with cross-examination. If a party has a QLR appointed, they will still have to make their arguments to the court themselves.
It is not unusual for the court to have made a Non-Molestation Order at the earlier hearing which will last until the contested hearing. The Court will often make such an order to ‘keep the peace’ until the matter can be properly determined. Respondents will not like this; they are not admitting to having done anything wrong, the Court has not found that they have done anything wrong, yet the order is made against them. However, even at an interim stage the court must still be persuaded that the applicant’s case satisfies the legal test before an order can be made.
Factors To Consider
Whenever the court makes a Non-Molestation Order, even on an interim basis (so pending a contested hearing with full evidence from both parties), it must be satisfied of the following criteria:
- There must be evidence of molestation;
- The applicant must need protection;
- On the balance of probabilities (so more likely than not) the molestation is so serious that the intervention of the court is needed.
Occasions where the intervention of the Court is not needed, even where there has been molestation, might include where the parties are no longer local to each other, or where there has been a significant time since the allegations. A Non-Molestation Order is not an excuse to simply rehearse old allegations; the court must be satisfied that protection is needed now. Applications which rely on allegations that are not recent, will struggle to succeed.
It is worth emphasising that the Court must be satisfied that the legal test is met, even if the application is not opposed. I have had cases in which the order has not been made, even if it has not been opposed. This is because, irrespective of the position of the parties’, the order is the Court’s to make. A respondent may not oppose the order, but this is not to say that they freely accept it. In such circumstances, the court must consider the merits of the application, and sometimes the application itself comes up short.
In writing this article I have attempted to provide a helpful overview of what a respondent can expect from Non-Molestation proceedings. It is not a comprehensive legal analysis, and is not designed to be so, but I hope that people who cannot afford legal representation can read this article and understand what they are facing, and are able to go to court without feeling lost at sea.
The team at Becket Chambers frequently take instructions in relation to Non-Molestation Orders. Should the reader have any questions, or is looking for representation, please do not hesitate to contact us at firstname.lastname@example.org