How to Apply for a Non-Molestation Order.
June 6, 2012 125 comments
Last week, a post by Nastassia Burton set out the eligibility criteria for applying for an occupation order, and the application process. This follow-up post focuses upon non-molestation orders, and what happens if a non-molestation order or an occupation order is breached.
Protection against domestic abuse is provided under Part IV of the Family Law Act 1996 (FLA 1996). The types of orders available fall into two categories: occupation orders and non-molestation orders. As previously detailed, an occupation order is an order from the court which excludes a party from occupying the home. If necessary, it can extend to excluding the abuser from a specified perimeter around the home.
A non-molestation order is for the protection of parties or any children. It can be applied for by an associated person, as detailed below. Occupation orders and non-molestation orders are traditionally regarded as draconian remedies, and there are stringent rules as to when they can be used. Both types of order can be made within family proceedings or as free standing applications.
Who can apply?
Like occupation orders, non-molestation orders can be applied for by associated persons. As in cases relating to occupation orders, applicants are generally spouses and cohabitants. Section 62(3) of the Family Law Act 1996 states that a person is associated with another if:
- They are or have been married to each other or have been civil partners
- They are cohabitants or former cohabitants
- They live or have lived in the same household for a reason other than one of them being the other’s employee, tenant, lodger or boarder
- They are relatives – this includes grandparents, aunts, uncles, nieces, nephews, cousins, step-parents and step-children
- They have agreed to marry or enter into a civil partnership or they have or have had an intimate personal relationship which was of significant duration
- In relation to a child, they are both parents or have or have had parental responsibility (where a child has been adopted or freed for adoption, two people will be associated if one is the natural parent and the other is the child or adoptive parent of the child)
- They are parties to the same family proceedings (other than proceedings under Part IV of FLA 1996)
Clearly the criteria offer protection to a large and diverse group, because the victims of domestic violence are not restricted to current spouses and cohabitants. In cases involving persons who are not associated, protection may be gained from an injunction under the Protection from Harassment Act 1997. (A suitable subject, perhaps, for a subsequent post?)
When an application for a non-molestation order is successful, the court can order that the respondent does not molest the applicant or a child.
The term molestation is not defined in statute – a deliberate omission, following a recommendation from the Law Commission, so as not to enable respondents to exploit a loophole. Molestation covers not only violence or the threat of violence but encompasses any kind of harassing behaviour. This can include shouting at the applicant, sending abusive letters and constantly calling the applicant. The list is lengthy. The lack of definition can cause difficulties at times but it seems right that it was not defined; otherwise, it would be impossible to cover every instance in which a non-molestation order could and should protect the applicant.
When the court is deciding whether or not to make a non-molestation order, it 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. When a non-molestation order is made, it can be for a specified period or until further order of the court.
Ex-Parte or On Notice?
Applications for occupation orders and non-molestation orders can be made either ex-parte or on notice – meaning that an application can be made either with or without the respondent’s knowledge. 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. If an ex-parte application order is granted, it will not become effective until it has been served upon the respondent. This is to ensure that a respondent does not unknowingly breach a court order. There will also have to be a return date hearing with both parties present, to allow the respondent to raise an argument against the order being made.
In practice it is easier to get a non-molestation order on an ex parte basis than it is an occupation order. However the court will list hearings for non-molestation orders and occupation orders as quickly as possible, usually within a few days.
Breach of an Occupation Order or Non-Molestation Order
The breach of a non-molestation order is a criminal offence, punishable by up to five years in prison. If a respondent breaches an order then he or she will be arrested, and can be charged and brought before a criminal court. The Crown Prosecution Service is responsible for prosecuting a breach, and the solicitor that made the application on behalf of the respondent would not play a part in the prosecution.
The breach of an occupation order is not a criminal offence, but a power of arrest can be attached to one or more of the provisions of the order. The court will attach a power of arrest if it appears to them that the respondent has used violence or threatened to use violence towards the applicant. The penalty for breaching an occupation order is punishable by up to two years in prison or a fine of up to £5,000.
If a power of arrest is not attached to the order, the applicant may have to apply to the court for a warrant of arrest. The applicant will have to give evidence and satisfy the court that there are reasonable grounds to believe that the respondent has breached the order.
Is a court order sufficient protection?
Just because an order has been made, one should not assume that the applicant is completely protected. Domestic abuse is a serious issue, especially when there are incidents of physical violence. A court order can be a deterrent for the respondent but unfortunately, if the respondent is going to be violent towards the applicant a court order will not necessarily make them think twice about it.
If you are reading this post because you believe that you are in immediate danger, or you feel threatened, then you should call the police immediately. Only then should you contact a solicitor to advise on whether you can make an application under the above provisions.
June 6, 2012
Categories: Family Law