This article sheds light on the best tips for practitioners to take away from the President of the Family Division’s Guidance 2026 on Non-Molestation Orders under the Family Act 1996, which was published on 17 December 2025 and came into effect on 12 January 2026. This guidance replaces the previous Practice Guidance Family Court – Non-Molestation Injunctions Under the Family Law Act 1996 issued on 14 July 2023; the first update since 2017 to practice and procedure concerning protective injunctions under Sections 42 and 45 of the Family Law Act 1996 (“FLA 1996”).
The President’s Guidance is published in tandem with the Family Justice Council Best Practice Guidance for Practitioners on Making an Application for a Protective Injunction Under the Family Law Act 1996”. This best practice guidance provides practitioners with useful insight into how to improve the quality and consistency of their applications for protective injunctions.
Since the previous President’s Guidance, the most notable challenge remains to be the sheer volume of applications, particularly to the judiciary, given the court’s limited resources. This guidance is very much welcomed, since it expedites the process the Court, as well as practitioners, must engage in at the first hearing, especially in cases involving litigants in person.
Without Notice Applications
When considering the test for without notice non-molestations order under Section 45(1) of the FLA 1996 in whether it is “just and convenient” to make an order without notice, the Court’s approach should be informed by a modern understanding of domestic abuse. This includes the definition of domestic abuse as set out in Section 1 of the Domestic Abuse Act 2021, which makes specific reference to controlling or coercive behaviour and psychological, emotional, and economic abuse. The Court will give due consideration to circumstances where it may be appropriate to make an order if it is likely that the applicant could be further coerced or controlled into withdrawing their application; or where the Court considers that the applicant is likely to be deterred from proceeding with their application if the respondent is put on notice of an application.
At the forefront of its mind, the Court will always have to consider balancing the applicant’s need for protection with the need to limit interference with the respondent’s rights to that which is proportionate. While exceptionality is not predicated under Section 45 of the FLA 1996, the leading authorities of R v R [2014] EWFC 48 and DS v AC [2023] EWFC 46 set out that an order under the FLA 1996 should only be made without notice to the respondent in exceptional circumstances. This puts applicants under an expectation to consider carefully whether making a without notice application is merited on the facts. Without notice orders are well regarded as the exception rather than the rule, but exceptional does not mean rare.
Particular thought must be given to orders that have the effect of barring a respondent from their home or place of work or other necessary locations. Such orders require specific evidence that justifies an extensive infringement of the respondent’s rights; of which the guidance regards such orders must be exceptional as well.
General Principles
The guidance addresses key areas of practice in respect of the timing of applications and procedure of when applications should be referred to a judge. To this effect, procedures should be in place to ensure that all without notice applications for non-molestation orders are referred to a judge on the day of issue if before 4:00 PM, or the next working day if issued after 4:00 PM.
In relation to listing, the guidance sets out that the Court should consider requests for participation directions, including for remote attendance where there are identified concerns as to vulnerabilities [Part 3AA of the Family Procedure Rules & Equal Treatment Bench Book 2025, paragraph 71]. Nonetheless, we will all be aware of the advantages to listing in person hearing, especially in cases involving litigants in person, where evidence is often brought to Court on the day.
Scenario 1
If the Court is satisfied that there is sufficient evidence to meet the merits of the test for a without notice order, and if it is just and convenient, the Court can make a without notice order on the papers in the terms sought or as deemed necessary and proportionate. The judge shall thereafter list a ‘return date’ hearing in no more than 28 days.
Scenario 2
The Court can also refuse the application for a without notice order on the papers with reasons and list the application on notice in no more than 21 days. In this scenario, the applicant may seek a without notice hearing for reconsideration of the application within 2 working days, which should be listed within 5 working days. If the Court directs that a bailiff is to serve the order, the order should specify the date from which the bailiff can attempt service, while allowing time for the applicant to seek reconsideration.
Scenario 3
The most common scenario is that the Court will list a without notice hearing to be attended by the applicant within 1 working day to enable them to give such evidence as may be required to enable the court to determine the application. The guidance sets out that consideration should also be given when listing to any further directions necessary for the without notice hearing, particularly in cases of applicants representing themselves. The court will consider the difficulties faced by those representing themselves who may not completely understand domestic abuse or have failed to present their case fully.
Return Dates
The guidance mandates that a return date must be fixed and specified in the without notice order, with the hearing notice sent alongside it. It specifically frowns upon giving the respondent permission to apply for a hearing date, stipulating it as an inadequate substitute.
Substantive Response before the Hearing
One of the most significant introductions within this guidance is the launch of the ‘Annex 2’ form which the Court should provide to the respondent with, alongside the without notice order. This form invites the respondent to indicate 5 days before the return date hearing whether they agree to the order continuing, whether they do not oppose it based on no admissions or findings of fact being made, or whether they oppose it. The ‘Annex 2’ form is very much welcomed, as it provides an avenue for the streamlining of a respondent’s position, of which practitioners are provided with little to no notice of before the return date hearing.
The guidance considers that it is acceptable and consistent with the overriding objective for the court to explore at a return date hearing whether a respondent is willing to submit to an injunction continuing in force with no admissions or findings of fact being made. If so, the order shall record that the court has made no findings of fact and that the respondent has not made any admissions. Amongst shared experience, it is often the case that respondents do not attend return date hearing or do not oppose the continuation of the protective order.
The guidance emphasises that the Court should explore whether the respondent is willing to give an undertaking. However, it provides that the Court should not accept an undertaking “where it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child; and for the protection of the applicant or child it is necessary to make a protective order so that any breach may be punishable under Section 42A2”.
Best Tips for Practitioners
End Dates for Orders
The guidance stresses that non-molestation orders must have a fixed end date, which may be for a substantial period, which is normally 6 or 12 months. However, it must be clearly set out on the face of the order, and it is not sufficient for a without notice orders merely to specify a return date with no end date for the order itself. The period of the order is a matter for the discretion of the judge having regard to all the circumstances of the case.
The guidance sets out that non-molestation orders should be protective, capable of being understood by both the applicant and the respondent, proportionate and readily capable of enforcement. The guidance frowns upon terms forbidding harassment, pestering or molestation, as these terms are not well understood and are not easily enforceable. It also disparages the making of orders prohibiting the use of or threats of violence, as these are already criminal offences which do not require the family court’s intervention.
Proportionality
The guidance emphasises proportionality with respect to the parties’ circumstances, particularly in cases involving parties that have children together or are engaged in other family proceedings. Special care must be given to avoid orders forbidding the respondent from serving evidence in response to the application.
Geographical Restrictions
The guidance provides insight in circumstances where the Court excludes the respondent from a geographical area. In these circumstances, the order should specify a named road or a clearly defined area and avoid the use of expressions such as ‘100 metres from the Applicant’s home’.
Right to Make an Application for Set Aside or Variation
It is not sufficient for the order to contain a phrase that provides the Respondent with ‘liberty to apply’. An order, especially without notice, must contain a statement of the right to make an application to set aside or vary the order under rule 18.11 in accordance with FPR 18.10(3), without waiting for the return date. If the Respondent makes an application for set aside or variation, the Court must list the application as a matter of urgency.
Evidence
Where the evidence relied upon by the Court for a non-molestation order is written, it must be identified in the order. Where, the court has received oral or other evidence (such as photo or video evidence), that evidence should be recorded on the face of the order or reduced to writing and served with the order.
Enhancement of Enforceability
The guidance provides some pointer for best practices to enhance enforceability of orders. The Applicant and Respondent’s dates of birth as well as the Respondent’s contact details should be recorded on the face of the order. If the Respondent’s information is not known when a without notice order is made, it should be obtained if they attend the on-notice hearing and legal representatives for the Applicant should use their best endeavours to obtain this information.
Service
The starting point for service of non-molestation orders is personal service. Both bailiffs and process servers must provide a fully complete, legible certificate of service (on form FL415) with sufficient detail to explain how service has been made, alongside their names and signatures marked clearly on the certificate. Applicants seeking for the Court bailiff to serve the order should submit a D89 form with the application to prevent any future delay.
The guidance notes that challenges arise in practice with enforcement of orders made where there is deemed or substituted service, including via messaging services. Permission for any other type of service is to be ordered by the Court as a matter of last resort; Applicants seeking permission should make formal applications setting out what attempts have been made to personally serve the Respondent.
If the Court is continuing the terms of a without notice order unaltered at a return date hearing and the Respondent does not attend, the order does not have to be personally served and should be served by post or email. If the terms of the without notice order are altered at a return date hearing, the Respondent should be personally served with the amended order regardless of their attendance, unless the Court considers it unnecessary which should be recorded on the order. As usual, if the Respondent attends the hearing, it is helpful to record that on the face of the order that the Court has explained the terms of the order and that the Respondent understood them.
Consolidation of Parallel Proceedings
Where there are parallel proceedings under the FLA 1996 and private law proceedings under the Children Act 1989 and allegations of abuse are made between the same parties, there should be appropriate case management to consolidate the two sets of proceedings at an early stage.
Any factual findings and evidence should normally be disclosed from one set of proceedings into the other, as Courts considering PD12J will have regard to any factual matrix that has already been the subject of determination in proceedings under the FLA 1996 when deciding whether a further fact-finding hearing in children proceedings is necessary.
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