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Non-Molestation Order

In this blog post we look at what a Non-Molestation Order is, when you should apply for one and also answer the most commonly asked questions about them.

What is a Non-Molestation Order?

Non-molestation orders are Court order that prevent your spouse or ex-partner from intimidating, harassing or pestering you, in addition to using or threatening violence against you or your children. In making these orders, the Court has the discretion to include tailored provisions and terms to suit your circumstances, depending upon the nature of the harassment you might be suffering from, e.g. to curtail the use of social media or control methods of communication.

Molestation is deliberately not defined in the statute governing these applications, which provides the court a wide-ranging discretion to provide relief from the abuse suffered.

Who can a Non-Molestation Order be applied to?

An individual can apply for a non-molestation order against another individual, providing they are “associated”. Whether you are associated to a third party or not will be based on the statutory definitions, which are relatively broad, but will include common relationships such as former and current spouses and cohabitants, relatives, people living in the same household, the parents of children in the house and those who have been in intimate, personal relationships of significant duration.

The nature of your relationship and association with the third party is important as this will govern the correct application to be made to the Court.

When would I seek a Non-Molestation Order?

It is important to consider the devastating impact that abuse can have on a victim and, therefore, it would be right to say that it is never too early to consider an application for a non-molestation order. However, it is equally right to say that other avenues should also be considered simultaneously.

For significant incidents of abuse and molestation, matters should be logged with the police. But this does not mean an application for a non-molestation order is needed every time. It may be that matters can be satisfactorily handled with a letter addressing your concerns – offering a cheaper, faster and less-adversarial solution to the problem.

Undertakings or Non-Molestation Order?

When considering the circumstances of an application, the Court will be mindful of whether an order is required, or instead, if sufficient protection can be provided by the Respondent giving an undertaking to the Court.

Undertakings are promises made to the Court by a party in proceedings. They are often used by the Court when it is satisfied that a promise that a course of conduct or behaviour will not occur and that, therefore, further hearings and non-molestation orders are unnecessary.

If the Respondent were to breach an undertaking, this would be enforceable as a contempt of Court, but the breach itself is not automatically a criminal offence. Therefore, when allegations within an application include threats or acts of violence, the Court should not accept an undertaking in lieu of an order, so that a breach is punishable as a criminal offence.

How to get a Non-Molestation Order

Non-molestation orders are acquired by applying to Court for the injunction. When applying, the Applicant must also complete a witness statement setting out in detail the circumstances of the molestation that has taken place.

When the Court receives your application, it will set a date for a hearing to decide what should happen.

Ex-Parte or On Notice?

Although usually the third party (Respondent) should be told if an application is made to Court alleging certain things about their conduct or behaviour, there are occasions when the Court will accept that this isn’t necessary, if doing so places the Applicant or children at risk or compromises their safety.

If an Applicant is in immediate danger, the application can be made to provide them with protection more quickly than if the application were made on notice. Applications made without notice to the third party are known as “ex-parte” applications.

If an ex-parte application order is granted, it will not become “live” until it has been served upon the Respondent. This is to ensure that the Respondent does not unknowingly breach a Court order. The rules regarding service of the order are complex and strictly observed, so it is important that legal advice is taken to ensure that you have complied with all necessary steps to protect yourself and benefit from the Court’s order.

How long does a Non Molestation Order last?

The length of a non-molestation order will depend on your personal circumstances, but they rarely last beyond 6 to 12 months.

If there are breaches of an order by the third party, as part of enforcing the terms of the order, it is possible to apply to the Court to extend the order beyond its original term, providing the existing order is still live. If the order has elapsed, a fresh application will need to be brought to the Court.

How does a Non Molestation Order protect me?

In making the non-molestation order on terms that you seek, the Court cannot guarantee that the Respondent will stop their intimidating, harassing or pestering behaviour. Just because you have a non-molestation order in your favour does not mean you are completely protected – the order is a deterrent.

However, if the Respondent breaches the order, they can be imprisoned by the Court.

How to challenge a Non Molestation Order

Whether made on notice or without notice (also known as ex-parte, see above), the Court will list an application for a non-molestation order to be heard relatively quickly after it is issued. This is important because it would be unfair to impose the terms of an order upon a third party who has not done anything wrong. Likewise, the Court is eager to get to the bottom of the Applicant’s allegations as soon as it can to provide them with the protection that they require.

The Court will provide a Respondent party with a copy of the application and witness statement detailing the alleged intimidating, harassing or pestering behaviour and ask the Respondent to reply to those allegations with a witness statement of their own.

The Court will consider the application and evidence before – over a series of court hearings (usually two or three) – a final decision is made regarding an order.

How to remove a Non Molestation Order?

The Respondent party to a non-molestation order can apply to Court to either vary the terms of that order or even have it set aside.

This generally occurs when a material change to their circumstances makes the terms of original order unfair or too onerous to function with its intended purpose and yet the Respondent does not seek to willingly breach it because of the consequent punishment. For example, the terms of a non-molestation order might include an “exclusion zone” around a property that the Respondent is not allowed to enter. At the time of the original order this might afford the Applicant the protection and peace of mind they sought and not been particularly troublesome to the Respondent. However, if the Respondent changed jobs and their new role was located within the exclusion zone, they may apply to the Court to either vary or set aside the order to allow them to take up their new job.

Does a Non Molestation Order show on a CRB check?

The Criminal Records Bureau was merged into the Disclosure and Barring Service (DBS) in 2012. DBS checks have now replaced CRB checks to provide assurances on an individual’s history when considering their suitability for a job role or function, usually with potential access to children or other vulnerable individuals.

Non-molestation orders are civil Court orders and are not automatically recorded against somebody’s criminal record. However, as below, breaches are a criminal offence and therefore, may be recorded.

What happens if a Non Molestation Order is breached?

The breach of a non-molestation order is a criminal offence, and potentially punishable by up to five years in prison. If a Respondent breaches an order then they will be arrested, charged and brought before a criminal Court.

If you have any further questions or would like to discuss Non Molestation Orders in more detail to see if they apply to your situation, then please contact us.

Philip is a Resolution member and formed part of the campaign to support no fault divorce proceedings. Philip is also contributor to the legal and national media on family law issues.

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