This article aims to look at the test required to be met and the process once at court of getting a non-molestation order. It does not cover the initial application process but the application should be made on form FL401 which can be found here: https://www.gov.uk/government/publications/form-fl401-application-for-a-non-molestation-order-occupation-order
The basic law around non-molestation orders, the hearings and undertakings will be explored to assist those unsure and worried about the process ahead.
Non-molestation orders can be granted by the Court under Section 42 of the Family Law Act 1996. This section describes a non-molestation order as being an order containing provisions prohibiting a person, let’s call them X, from molesting another person, who will be called Y or a ‘relevant child’. Y needs to be a person who is ‘associated’ with X.
Under Section 62 of the same act, two people are ‘associated’ if they:
- are or have been married or civil partners of each other
- are cohabitants or former cohabitants
- live or have lived in the same household other than by reason of one being the other’s employee, tenant, lodger or boarder
- are relatives
- have agreed to marry one another (whether or not that agreement has been terminated)
- have or have had an intimate relationship with each other which is or was of significant duration
- have entered into a civil partnership agreement (whether or not that agreement has been terminated)
- in relation to any child they are the parents of that child or have parental responsibility for that child
- are parties to the same family proceedings
A ‘relevant child’ is any child who is living with or might reasonably be expected to live with either X or Y, any child in relation to whom an order under the Adoption Act 1976, the Adoption and Children Act 2002 or the Children Act 1989 is in question in the proceedings and any other child whose interests the court considers relevant.
In deciding whether to grant a non-molestation order, the court will have regard to all the circumstances including the need to secure the health, safety and well-being of Y and any relevant child (Section 42(5)). Any order can by expressed to refer to the prohibition of molestation in general, to particular acts of molestation or both and can be made for a certain period or until further order of the court.
Non-molestation orders can be made ex parte, that is without X being put on notice or being made aware of the application for the order. The Court will only make an ex parte order where it considers it just and convenient to do so and will have regard to any risk of significant harm to Y or a relevant child attributable to X’s conduct if the order is not made immediately, whether it is likely that Y will be deterred or prevented from pursuing the application if an order is not made immediately and whether there is reason to believe that X is aware of the proceedings but deliberately evading service and any delay involved in effecting service will cause serious prejudice.
If an order is granted ex parte, as explained above, X must be given the opportunity to make representations relating to the order at a full hearing, as soon as just and convenient. In practice, there are two ways in which this happens; the court will either list a hearing at which both parties attend or one in which only X attends.
If a hearing is listed for only X to attend, X should attend the hearing and make the court aware of whether he or she is accepting of the order or contesting the order. If the order is accepted, it will remain in place and there will be no further hearings. If it is contested a second hearing will be listed at which both parties will attend.
At the second hearing, X may consider offering undertakings (explained below) or accepting the order on a ‘no admissions, no findings’ basis. The second of these means that the order stays in place but X does not admit to any of the allegations made against them and the court makes no findings as to whether the allegations happened or not. If no offers are made and the order is not accepted on any terms, the court will list directions at this hearing and set a final hearing. Directions set a timetable for when evidence, including witness statements of the parties, should be sent to the other party and to the court.
At any hearing where both parties have to attend and there are allegations of abuse, measures can be put in place to ensure the parties don’t come into contact. Before the hearing date, a request can be made to court for a conference room to be reserved so that the party concerned is not left in the general waiting room at the court. Requests can also be made for screens to be put up in the court room so the parties do not see each other or for evidence to be given by video link so that it is given from a different room entirely. Questions to be put to the witness can also be directed through the Judge(s) so that the alleged abuser is not questioning the alleged victim direct.
Offers of Undertakings
Undertakings are often offered in lieu of a non-molestation order. Undertakings are solemn binding promises made to the court that carry certain penalties if broken. Breaching an undertaking is not a criminal offence, however, the person that has breached them will be in contempt of court and can be imprisoned for up to two years or fined an unlimited amount. As the breach of an undertaking is not a criminal offence, a person cannot be arrested for breaching it; which contrasts with the power of arrest automatically attached to a non-molestation order.
The court cannot accept undertakings in lieu of a non-molestation order where it appears to the court that X has used or threatened violence against Y or a relevant child and for the protection of Y or a relevant child it is necessary to make a non-molestation order so that any breach is punishable under Section 42A – the offence of breaching a non-molestation order. Under Section 42A, the offence carries a sentence of up to 12 months’ imprisonment or a fine or both on summary conviction or up to 5 years imprisonment or a fine or both for a conviction on indictment (conviction in the Crown Court).
At the final hearing, both parties will give evidence regarding the allegations. This means that X and Y will both be able to put forward their case as to what happened and why the order is either necessary or not. However, both parties will be subject to cross examination from the other which means some uncomfortable questions will be asked as one parties’ case is put to the other to challenge the other parties’ version of events.
After hearing the evidence, court may make findings as to whether the allegations happened, which will feed into their decision of whether the non-molestation order should remain in place or be discharged based on the criteria set out in the ‘The Law’ section above (the Court having regard to all the circumstances including the need to secure the health, safety and well-being of Y and any relevant child).
The process may be a smooth one or may be slightly more difficult dependant on the position of X but hopefully this guide has assisted somewhat in what to expect when applying for a non-molestation order.
Members of Becket Chambers can provide advice and assistance with non-molestation orders. Please contact the Clerks for more details (firstname.lastname@example.org)
Cara Radford is a pupil barrister in Becket Chambers, presently undertaking her second six.