Seeking protection from harm – is a non-molestation order right for me?

A recent reported case [M -v- D (Family Law Act: 1996: Meaning of ‘Associated Person’) [2021] EWHC 1351] has flagged up some of the difficulties an applicant may face in trying to secure the protection afforded by a non-molestation order (NMO), effectively a form of injunctive relief. In that case, the applicant was unsuccessful both at first instance and on appeal in persuading the court that the respondent, her step-nephew, was an ‘associated person’ for the purpose of the Family Law Act 1996 (the Act), in respect of which she was therefore entitled to apply for a NMO. The applicant was therefore unable to continue with her application for a non-molestation order to give her protection against what she said were the respondent’s threats made in phone calls, social media posts and in person. These threats were said to include rape, murder and acid attacks. Other, more closely related family members had already secured non-molestation orders against the respondent. The court held that given that some categories of ‘step-relatives’ had been expressly included in the definition contained in the Act, it would therefore follow that those which had been excluded, had been done so deliberately.

The applicant was not left entirely unprotected as the court was satisfied she would find appropriate protection in the Protection from Harassment Act. However, the outcome does raise some interesting challenges given the evolution of modern families. Previous case law had made clear that it was important that the court did not interpret the definitions too narrowly, thus excluding ‘borderline cases’ where a victim required protection.

What is a non-molestation order?

An NMO is a form of injunction, designed to protect the applicant from actual harm, or the risk of harm. This could also be extended to provide protection to any relevant children. A NMO has an automatic power of arrest attached and breach carries the risk of imprisonment for up to five years. This means that in the event the order is breached, the applicant can report the breach to the police who must arrest the respondent. It can therefore be a very useful and powerful tool.

What is meant by ‘molestation’?

‘Molestation’ is not defined in the Act, but generally the order is designed to protect the applicant or children from harm or the risk of harm—there is a wide definition of harm, which is not limited to physical harm. Other, equally invidious examples would also be included and given due weight by the court, to include harassment, controlling behaviour and emotional and/or sexual abuse.

The case law has numerous examples of molesting/harm, ranging from acts and threats of violence, to searching through an applicant’s handbag without permission, to sending nude photos of an applicant to the newspapers.

Who can apply for a non-molestation order?

As referenced in M -v- D above, the applicant must show that the respondent is an ‘associated person’ in accordance with s63 (1) of the Act. The court form helpfully sets out a list of options, so that the applicant can select one, thus confirming the court’s jurisdiction at the outset. In our day-to-day experience, most NMOs will be applied for and/or granted against current or ex partners. This includes same-sex partners, and there is no requirement to be married, separated or divorced.

How do I apply?

There is no court fee involved in the application. An application should be made in form FL401, with a detailed statement in support. While it is accepted that frequently these applications will need to be made as a matter of urgency, so that time is limited, it is important to ensure that the statement covers as much pertinent detail as possible, with evidence in support where available. Historical information may be relevant where it demonstrates a pattern of conduct by the respondent; however, it is important to demonstrate to the court why the application is being made now, at this time.

The statement should clearly explain the circumstances of each incident relied upon, providing dates where possible as well as confirming the identity of any third parties who may have witnessed the event and be able to corroborate it.

We would recommend that the statement should exhibit, where available:

• Clear, colour photos of any injuries caused, or damage to property/belongings
• Text message/social media evidence where relevant, such as messages containing threats of violence or control
• Any relevant third party information. This might include for example a supporting letter from domestic violence support worker, or counsellor, or GP

Full detail should be given of any relevant third-party assistance, such as where the police have been contacted, and what advice or protective measures were given. 

If the respondent does not know your address, the court can be asked to maintain confidentiality.

Where the application is made without notice (ex parte), the statement should clearly identify the reasons why. A copy of the draft order sought should also be enclosed.

There is a wealth of information available on line, to provide support with the drafting. Some domestic violence charities and support services may also provide assistance. Further, you may be eligible for legal aid for advice/representation in making the application.

What does a non-molestation order prevent?

An NMO can prevent the respondent from a number of wide-ranging actions, to include:

• Not using or threatening violence against the applicant, or encouraging anyone else to do so
• Not communicating with the applicant by any means
• Not entering the applicant’s home, or going within a certain vicinity of their home (often called a ‘stay away order’, ‘zonal order’ or ‘exclusion order’)

What is the procedure?

It is possible to apply for an NMO both on notice to the respondent and in appropriate cases on a without notice basis (ex parte). A without notice application means that the evidence will first go before the court without the respondent having any knowledge of the application or proceedings. This process is naturally reserved for more urgent, high-risk situations. The court may make the NMO sought, which would then be served on the respondent, with a date given for the parties to return to court (the ‘return date’), and for the respondent to challenge the order if he/she wishes. 

Alternatively, the court may deem that the contents of the application do not merit the NMO being made ex parte, in which case the matter will be listed for an initial directions hearing for both parties. Prior to that hearing, the respondent must be personally served with a copy of the application and all supporting documents no less than two days before the hearing.

The purpose of that first hearing will be to explore briefly whether the matter can be resolved in an appropriate way (see below), or whether written evidence is required, along with a contested hearing.

At a contested hearing, each party will need to give evidence (and be cross-examined), before the court decides whether to grant the NMO sought. This hearing is likely to include an element of ‘fact finding’, in that the court may well make findings in respect of some or all of the allegations made. This essentially means that the court is deciding whether the applicant has proved each allegation (or each relevant allegation). The burden of proof is the balance of probabilities, therefore a lower standard to the criminal burden. The respondent in such an application therefore needs to be well-advised and aware of the risk that findings may be made against them at the outcome of the case, and the implications of such findings in any other proceedings, for example in subsequent Children Act proceedings. The court must be alive to the impact of any actual harm suffered, or risk of harm, on any children. Where findings (or admissions) have been made in relation to the NMO proceedings for example, Practice Direction 12J of the Family Procedure Rules ensures that the court must have proper regard to the potential impact and risks of granting or continuing contact in those circumstances. Such harm does not need to involve the children directly—the negative impact of witnessing violence or other forms of harm is well recognised.

During the pandemic, it is anticipated that these hearings will, in the vast majority of circumstances, take place remotely. However, once there is a return to normality, potential applicants should be aware that the court can be requested to provide additional safety measures, such as the use of keypad protected/lockable waiting rooms. In some extreme circumstances, alternative/concealed entry and exit from the court building can be facilitated.

When will an application be successful?

In considering the application, the court must consider all the circumstances of the case, including the need to secure the health, safety and wellbeing of the applicant and any relevant child. In assessing whether to make the NMO ex parte, the court must consider, among other factors, the risk of any harm to the applicant or child if the order is not made immediately, and/or whether the applicant will be deterred from pursuing the application if the order is not made immediately.

How long will the order last for?

Generally, a NMO will last for 12 months, although the judge has discretion to decide. However, an application could be made to extend the duration if required.

Is granting an order the only option available to the court?

In certain circumstances, it may be appropriate for the court to accept undertakings from the respondent, addressing various concerns, for example not to attend within a certain distance of the applicant’s property, not to harass, intimidate or pester the applicant (nor encourage anyone else to do so). An undertaking is a binding promise to the court—breach of an undertaking puts the respondent in contempt of court. However, the advantage of concluding the matter by way of undertakings is that there will be no requirement for further proceedings, with the associated costs and stress involved. The applicant may well be able to secure the protection they require, while the Respondent has made binding commitments without the risk of a contested hearing, and without risking findings being made against them.

The court cannot accept undertakings in circumstances where the respondent admits, or it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child. If that allegation is denied, then it is likely that the court will need to proceed with a fact-finding hearing. 

In the event that undertakings are not accepted, or appropriate, it is also possible to agree the terms of a NMO based on there being no admissions, or findings. A power of arrest will attach to this order, even if made by consent; however there might be an advantage for the respondent of resolving matters on this basis without incurring the costs of a final hearing, and/or the risks of findings being made.

Is a non-molestation order the right option for me?

It should be noted that if at any stage you feel that you or your children are at risk, you must as a matter of priority contact the police. In certain circumstances, the police may be able to assist, where for example a criminal offence has been committed. The police may bring charges, or issue a harassment warning, which may be sufficient. If criminal charges are brought against the respondent, the court may also make a restraining order. 

Further, it may be appropriate to make an NMO application in conjunction with an application for an occupation order, which regulates occupation of the family home. 

My ex has sought a non-molestation order against me, what shall I do next?

Firstly, check the time and date of the hearing, and make sure you attend. Failure to attend may mean that an order is made against you in your absence. If there is sufficient time, it may be beneficial to prepare a statement responding to the applicant’s allegations, so that the court has an idea, at an early stage, of the details of your position in response. Provide supporting evidence where you have it, and your own explanation of the allegations made. If they are denied outright—make that clear. If you cannot remember certain details, then confirm that.

If possible, take proper legal advice from a specialist solicitor, so you understand your options and the pros and cons of each. Again, consider the merits of instructing a solicitor or barrister to represent you at the hearing. Most importantly, do not ignore the proceedings. It is vital that you engage fully to best protect your position. 

We understand that NMO proceedings, whether you are the applicant or the respondent, are some of the most stressful in family law. Often very serious allegations will be made, and time can be of the essence in securing the NMO or defending the same. We have a wealth of experience in both applying for and defending such application. 

Please contact a member of our Family team if you require legal advice or more information on NMO proceedings.