An Ultimate Guide to Non-Molestation Orders

According to the National Centre for Domestic Violence, one in five adults will experience domestic abuse. Although both sexes are at risk of domestic abuse, women suffer more than men: one in four women will experience domestic abuse as compared to one in six or seven men. One legal response to domestic abuse – whether physical or emotional – is the non-molestation order.

Non-molestation orders are wide-ranging orders of the court that can be used to provide legal protection against almost any type of harm one is going through, provided certain criteria are met.

In this Ultimate Guide, we’ll explain everything you need to know about non-molestation orders:

• What are non-molestation orders?
• Who can apply for a non-molestation order?
• How long do non-molestation orders last?
• What circumstances typically lead to a non-molestation order?
• Are there any alternatives to non-molestation orders?
• What is the legal process for people seeking non-molestation orders?
• What resources are available for people seeking a non-molestation order?
• Frequently asked questions

What are Non-Molestation Orders?

A non-molestation order is a court order designed to protect the ‘applicant’ (or victim) from harm. 

It is an order which is ‘injunctive’ –. i.e. it seeks  to prevent the person against whom an application is brought (the ‘respondent’) from acting in a specified manner. ‘Molestation’ is not defined or limited,; and the court takes a very broad approach as to what constitutes harm, meaning the order can address particular behaviour.

The law is clear that there does not have to be a positive intent to molest. However, that does not mean that the test is a wholly subjective one, whereby the Applicant simply has to feel distress to justify the making of an order.

The court adopts a three-stage test when considering whether to make a non-molestation order under s.42 FLA 1996:

1. Is there evidence of molestation? 
2. Does the applicant need protection? 
3. On the balance of probabilities, is a court order required to control the respondent’s behaviour? 

An applicant must be able to satisfy all three hurdles in order to succeed.

Standard provisions typically include wording such as “not to harass, pester, or contact the applicant.” However, the courts have a wide discretion and can order the respondent to refrain from doing anything that may be deemed as harmful.

The ‘applicant’ for a Non-molestation order, wants to prohibit an abuser from using or threatening physical violence, intimidating, harassing, pestering, or communicating with them. An order could prevent the abuser from coming within a certain distance of the victim, their home address, or even attending their place of work. 

Other people (such as children), property, or public or online speech, can be covered by an order. Whatever behaviour is causing “harm” (as defined by the court) can become legally prohibited using a non-molestation order.

Who Can Apply for a Non-Molestation Order?

The Family Law Act 1996 governs a person’s eligibility for non-molestation orders. The short version is that: anyone can apply for a non-molestation order against an ‘associated person.’

Most of the time, non-molestation orders are used when parties are in or were previously in a relationship. An associated person usually means a spouse, an ex-partner, or a family member. 

However, they are not just limited to relationships. Children can apply for a non-molestation order against a parent, as can people in other relationships. The full list of “associated persons” is as follows:

• People who have been married or civil partners, or people who have agreed to marry or enter into a civil partnership
• People who have cohabited
• People who have lived in the same family household
• People who have had an intimate relationship for a long time
• People who are parties in the same family proceedings
• People who have shared parental duties

Do They Have to be Living in the Same Property?

No, the parties involved do not have to live in the same property. As long as there is a harassment of some sort, you can apply for a non-molestation order. For example, if someone is constantly causing issues, maybe at someone’s workplace by emailing them all the time, that could be deemed as ’molestation.’.

The police may not act if it doesn’t amount to a criminal offence. However, under the Family Law Act, if it causes potential harm, then that person can be ordered to refrain from doing so by the court. Additionally, a non-molestation order will usually have a power of arrest attached to it. This means that, if it is breached, it can be reported to the police. In this way, harmful behaviour that would not normally constitute a criminal offence can become one.

How Long do Non-Molestation Orders Last?

Non-molestation orders usually do not last for longer than a year. If the harassment complained of is still continuing as the end of the order approaches, the applicant should come back to court to extend the order before it expires. 

Non-molestation orders can be a powerful tool for protecting individuals from harm. They offer a wide range of protections and can be tailored to fit the circumstances of the case. This is their real value: the ability to provide bespoke legal protection in instances where, previously, no protection existed; for a particular duration.

What Circumstances Typically Lead to a Non-Molestation Order?

Physical violence is often present when non-molestation orders are applied for, but it’s not a requirement. In many cases, there’s no physical violence involved at all. Instead, the issue may be mental abuse or a catalogue of incidents. 

Any behaviour which has an impact on your health, well-being, or ability to work or function properly could be grounds for a non-molestation order. For example, if someone is continuously bombarding you with emails or messages, or using language which makes you feel uncomfortable or threatened, or doing something which causes you distress.

Other behaviours that could lead to a non-molestation order include pushing you out of the family home, arguing with you, swearing at you, following you around, controlling you, or preventing you from seeing your friends and family. Any behaviour that you feel is wrong and unwanted could potentially be grounds for a non-molestation order. However, see above as to the court’s criteria for making such orders.

Are There Any Alternatives to Non-Molestation Orders?

Non-molestation orders are a form of personalised injunction granted by the family courts to protect individuals from harm or threats of harm. 

However, there are circumstances where alternatives may be more appropriate, or even necessary. Three alternative ways in which a person can find protection from unwanted behaviour include:

Undertakings

Sometimes the court will look to extract a promise from a respondent that they will not behave in the same way again within the non-molestation proceedings. The advantage of an undertaking is that the respondent does not have to admit that they have done anything wrong, and therefore they are more likely to promise not to carry out the behaviour subject of the complaint.

The main disadvantage of an undertaking is that no power of arrest can be attached; so the applicant will have to come back to court to enforce the undertaking, rather than simply calling the police for a breach.

Restraining Orders

Restraining orders are a common alternative to non-molestation orders. Unlike non-molestation orders, which are granted by the family courts, restraining orders typically follow criminal proceedings and are given by a judge sitting in the Crown or magistrates’ courts.

Restraining orders are usually used when there have been criminal proceedings against a person. They can be obtained when someone is a victim of a crime and they require protection from harassment or fear of violence by the perpetrator for a specified period or until a further Order is made.

Police Intervention

In cases where immediate danger is present, contacting the police should be the first course of action. If someone has subjected you to domestic violence or has made threats against you and your family, they have committed a criminal offence, and you should notify the authorities immediately.

The police could, for example, bring charges of assault or prosecute for an offence under the Protection from Harassment Act 19971. In some cases, a non-molestation order can be used to complement or follow up the action that police take.

Mediation and Counselling

In some cases, mediation, counselling or family therapy may be a viable alternative to a non-molestation order. This is particularly true in cases where the parties are willing to communicate and work towards a resolution. Mediation involves a neutral third party who helps the parties to discuss their issues and find a mutually agreeable solution.

Counselling, on the other hand, can help individuals to deal with the emotional impact of the issues they are facing. It can also provide strategies for managing conflict and improving communication. Family therapy can help a perpetrator to understand the impact of their behaviour upon a victim.

None of the above should be used in place of proper protection from abuse. But in cases where harm is caused unintentionally and a relationship remains in place, they can sometimes provide a valuable route to resolution.

What is the Legal Process to Obtain a Non-Molestation Order?

There are several steps to obtain a non-molestation order:

Step 1: Determine Eligibility

The first step in obtaining a non-molestation order is to determine whether you are eligible to apply. As set out above, the criteria determining eligibility depends on the definition of an “associated person” and whether the behaviour meets the legal test as set out above.

Step 2: Application Form

Once you have determined your eligibility, the next step is to fill out the application form, known as Form FL401. You should speak to your solicitor if you need help filling this form out, although it includes information and guidance itself.

Step 3: Supporting Witness Statement

Along with the application form, you must also complete a supporting witness statement. This statement should include all the information needed by the court; such as what happened, when and why you need the court’s protection. You can use the template provided by the court, or you can write your own statement. If you choose to write your own statement, it must include a ‘statement of truth’ along with your signature and the date.

Step 4: Submitting the Application

After you have completed the application form and the supporting witness statement, you can submit your application to the court. There are no court fees for applying.

Step 5: Court Hearing

Once your application has been submitted, a court hearing will be scheduled. In the first instance, this will be a short ‘directions appointment’ to see if the judge can resolve the case quickly; i.e. by way of undertakings. If this is not possible, the judge can make the non-molestation order anyway if he feels the case merits it, and that can be challenged later. If the judge does not feel able to make the order then the case will be listed for a final hearing, often many months later, where the judge will review the applicant and respondent’s statements, consider the evidence. Both the applicant and respondent will go onto the witness stand and give their version of events, and be questioned about that by the other person.

Step 6: Granting of the Order

If the judge is satisfied that the non-molestation order is necessary to protect you from harm, the order will be granted. The order can last for a specified period or until a further order is made.

What Resources are Available for People Seeking a Non-Molestation Order

If you are considering applying for a non-molestation order, it’s important to know that there are numerous resources available to help you both through the process, and think through the reasons you may be seeking a non-molestation order. Here are some key resources that can provide assistance:

Citizens Advice

Citizens Advice provides free, confidential, and independent advice to help people overcome their problems. They can provide guidance on a range of issues, including how to apply for a non-molestation order. Visit the Citizens Advice website for more information.

National Domestic Abuse Helpline

The National Domestic Abuse Helpline is a 24-hour helpline that provides support and advice to victims of domestic abuse. If you’re in immediate danger, you should always call the police, but the helpline can provide ongoing support and advice. You can reach the helpline at 0808 2000 247.

Women’s Aid

Women’s Aid is a grassroots federation working together to provide life-saving services and build a future where domestic violence is not tolerated. They offer a range of resources, including a Survivor’s Handbook that provides a range of information including legal and housing advice. Visit the Women’s Aid website for more information.

The Law Society

The Law Society represents solicitors in England and Wales and can help you find a solicitor who specializes in family law. They can provide advice on applying for a non-molestation order. Visit the Law Society’s website for more information.

FAQs

What happens if a non-molestation order is challenged?
If a non-molestation order is challenged and it becomes clear that there were no grounds to make the application, the applicant can face a ‘costs order’. This is where one person pays the other’s costs if they do not succeed. However, such orders are very rare.

What kind of evidence is required to successfully obtain a non-molestation order?
The evidence required depends on the abuse. It could include photos of injury, GP reports and/or letters, text messages, emails, and anything in writing that supports the allegation of harassment.

Can voice recordings or videos be used as evidence for a non-molestation order?
Yes, voice recordings and videos can be used as evidence. However, it can be difficult to send them to court due to practicality issues.

What happens if a non-molestation order is discharged at the review hearing?
If a non-molestation order is discharged at the final hearing, the proceedings would end. 

What happens if a non-molestation order is admitted without challenge?
If a non-molestation order is agreed or the respondent does not challenge it, it usually stays in place for a year.

Does a non-molestation order provide complete protection?
While a non-molestation order is designed to provide protection, its effectiveness depends on various factors, including the willingness of the respondent to comply with the order. Also, the applicant must be willing to report the respondent to the police for any breaches, or bring the matter back to court.

What safety measures can be requested at the court?
If you’re concerned about your safety, various safety measures can be arranged at court. This could include things like a screen or a separate waiting room, as well as other elements designed to keep you separate from the other person.

Final Thoughts

While there is no legal magic wand, the beauty of a non-molestation order is how flexible it is, and how it can be applied to circumstances from which there are usually no legal protections available.

If you are considering applying for a non-molestation order, we suggest keeping the following in mind:

• If you feel as though you, or a dependant, are in immediate danger, then do not look at a non-molestation order as your first move. It is essential that you take steps to protect yourself from immediate threats before considering a non-molestation order, so if you are suffering from abuse and feel as though you are in danger, contact the police as your first port of call.
• While non-molestation orders are easy to apply for, the process of compiling evidence is somewhat more challenging. We recommend everyone looking for a non-molestation order contact their solicitor for legal advice before applying, ensuring they have the best chance necessary of obtaining the protection they desire.
• In some rare cases, non-molestation orders may not be the most appropriate solution to your problem. Again, your lawyer is the best person to talk to when it comes to figuring out whether a non-molestation order is right for you. In some cases, non-molestation orders have been abused, so an alternative, such as a restraining order, may be more suited to your needs.

Most people who are hoping for a non-molestation order are experiencing a difficult time. At Blanchards Law, we are sensitive to the difficulties you may be going through, and invite you to contact us at the first opportunity. Together, we can help you find a solution that’s right for you and your loved ones.