How to Apply for a Non-Molestation Order. By Laura Guillon.
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?)
Non-Molestation Orders
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.
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.
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21 Comments
JamesB on June 6, 2012 at 4:42 pm
This can include shouting at the applicant, sending abusive letters and constantly calling the applicant, or even just being alive.
Jimbo on June 6, 2012 at 5:59 pm
These days, if you tell your partner to “shut up,” that can be viewed as domestic violence.
The degree of evidence required to get these non-molestation orders is woefully inadequate and malicious solicitors use them as a tool for resident parents who are intractable on contact.
DT on June 6, 2012 at 7:23 pm
Laura
I really like this post – it’s just the right amount of information, pitched in the right way.
I think that non-mols. used to be cautiously handed out, however, do you think that nationally this is still the case?
The reason I ask this, is that following a number of women being murdered by their partners over the last few years and this being covered quite a bit by the media, I got the impression when I was in private practice (and it was only an impression), that non-mols. have been granted more easily in recent years.
Perhaps I’m wrong or perhaps it was more to do with the area of the country where I worked – I don’t know.
I’ve given your article a lot of thought today and I don’t think that these orders are draconian; I think that they’re an order of last resort.
Thank you for mentioning civil partnerships.
DT
DT on June 6, 2012 at 8:55 pm
Jimbo
“malicious solicitors”?
If solicitors were to act maliciously, it would soon get about, they’d never get instructed and would be struck off!
Acting maliciously is neither in the client’s not the solicitor’s best interest therefore I do not accept that this happens.
DT
Paul Gilson on June 6, 2012 at 9:12 pm
In the course of disputes involving children, non-mols are dished out ex-parte like Smarties. The rules may be stringent – on paper – but are never stringently applied and applicants frequently distort or lie about the facts. Nor are return hearing dates automatically and quickly set either. This is another unscrupulous aspect of family law, promoted by the unscrupulous, including solicitors, often for tactical, balance sheet motives.
Observer on June 7, 2012 at 12:03 am
DT -
Let’s not forget all the men murdered by their partners, who for one reason or another don’t merit any media attention.
Let’s not forget all the children murdered by their mothers as a result of a pathologically adversarial family justice system.
Jimbo is right, and you are wrong, I’m afraid. Malicious solicitors are in abundance, and they are not held to account. You will of course know that the Solicitors Regulation Authority only exists to provide the public with the appearance that solicitors are accountable.
JamesB on June 7, 2012 at 11:46 am
they often just change the locks when the fella is at work then if he trys to break in do him for aggresion and assault and non mol and occpation order.
JamesB on June 7, 2012 at 11:47 am
the problem is they then regard the house as theirs and the bloke is out on his ear, leaving, with, nothing.
JamesB on June 7, 2012 at 11:48 am
the lock idea is usually from the feminazi police or lawyer or society.
Paul Gilson on June 7, 2012 at 6:28 pm
Why can’t fathers get an equivalent ‘no notice’ deal on personality disorders?
DT on June 7, 2012 at 6:32 pm
Observer
Which statistics are you relying upon in relation to men being murdered by their partners? Do you know for sure that they haven’t received any media attention? Can you prove this?
What evidence do you have to support the notion that children have been murdered by their mothers as a result of a “pathologically adversarial family justice system”? I’d be interested to see this.
I do not accept that malicious solicitors are in abundance – show me the evidence and I’m willing to reconsider my view on the matter. I’ve had my mind changed on a number of matters through reading this blog and I’m open to fresh ideas.
The SRA is not there to manage public perception; it has teeth, it isn’t afraid to use them and indeed does! The SRA website publishes the findings of disciplinary hearings; it’s pretty transparent.
DT
B L on June 27, 2012 at 7:51 am
HI my daughter has a non mol against her ex partner who is very unstable abusive and violent the police applied for it he has started now coming behind my husband whom is a pensioner and does not want to confront him flashing his lights and tooting his horn is this breaking his order as he has been told he must not have any contact with her or her family we have been told he is now in court next week for harrasment to another lady will what he has done to my daughter and her family be took into account it was late last year he was given the non mol
Marilyn Stowe on June 27, 2012 at 7:54 am
Dear BL
Thanks for contacting me. I suggest you tell the police immediately and let them deal with it.
Best wishes
Marilyn
geoff on August 7, 2012 at 10:30 pm
ive just been issued with one of these non mols… cant believe it!!!
i went to my exes house as arranged and gave my daughter her birthday presents, my daughter wanted to go to mcds for a happy meal and jumped into the back of my car her mum said no an man handled me out of way, man handled my current with by grabbing her by the hair , and I may add she had an 8mth old infant on her knee causing the child to be nearly dropped…. i was in such a rage I knocked of the wing mirror of the car the ex drives ( which is legally half mine!!) ay new wife then hit my ex a slap on the face because she pulled her hair and nearly dropped our baby, the ex then threatens us with paramilitaries ( ie someone will be around to beat us up ) …. then I get hit with crimial damage for damaging my own car!! my wife for assult!!! even thou the ex did what she did…. and now this non mol!!! and Im still waiting to be interviewed by the cops over the criminal damage and assault charges!!!! …. Is there any appeal or justice for fathers out there??!!! …
As for solicitors being malicious, yes some are some arent…. remember solicitors are not there to help you… they are there to make money!!! its a business after all
Eb2b on September 25, 2012 at 3:41 pm
I enjoyed reading peoples views on this issue and would like to add my own.
I think its possible that NMO’s may be handed out more easily… However, not one of you has touched on how harassment (of whichever form) effects the well being of the victim and any children involved in the situation.
I believe that this is something that sould be handed out easily. Victims of abuse, such as harassment, constant calls, name calling etc, and the children (who incidentally are not stupid and hear what is going on) are very much in danger of being psychologically damaged by those actions.
I know what I’m talking about here, my partner (male) is going through the process of getting something in place to stop his ex (who has the most parental responsibility of their child) from shouting at him and sending threatening and abusive messages. This is NOT for his benefit (in his eyes at least, as although he may not admit it, its clearly affecting his emotional wellbeing), he is doing this because it is affecting the wellbeing of his daughter who is 5 years old and voicing her concerns about “mummy shouting and swearing and anger”.
Please THINK about posting comments such as “These days, if you tell your partner to “shut up,” that can be viewed as domestic violence.” When actually it has a very detrimental effect on people, even when it is not directed at them! My poor little step daughter has to stand there every time her daddy picks her up and listen to a torrent of abuse directed to her dad, who incidentally is a fantastic dad and deserves a medal for what he has put up with for two years!
Eb2b on September 25, 2012 at 4:19 pm
Can I also just say, regarding this comment: “In the course of disputes involving children, non-mols are dished out ex-parte like Smarties”
This sounds to me as though you have not taken the time to look at the ‘bigger picture’. I understand that people can distort and lie about incidents, but has it not occurred to you that there are honest people out there who really need NMO’s to PROTECT THE WELLBEING OF THEIR CHILD??!!!
Honestly! My partner doesn’t even have full custody of his daughter!! Yet he is concerned for her. Comments like that make me believe you may be at the sticky end of an NMO and not taken into account the effects that simple “words” have on children.
My partners ex thought it would be a good idea to shout out to a train station at large “don’t bother bringing her (‘her’ being their 5 year old daughter) back on Sunday coz I don’t want to see you ever again”. What she failed to realise is that to a 5 year old this means that “mummy doesn’t want me anymore”. Also NO… You shouldn’t be allowed to tell a partner or ex-partner to shut up!! What are you? Some kind of control freak? And what are you teaching your kids? That this is the way men are supposed to speak to women? Or even vice-versa!!
Sorry, but any kind of verbal abuse, direct or over the telephone, even the kind that isn’t directed or in front of children, HAS AN EFFECT… 1) if the child witnesses this and 2) if it has an effect on either parent because emotional abuse can make a person unwell, fearful, edgy, nervous and depressed, therefore affecting their skills as a parent.
A good parent will go out and get an NMO because they understand the effects of behaviour. A bad parent will either be blase to the effects or be at the sticky end of it.
I believe that my partner should have every right to apply for an NMO, and not because I’m his partner (I wouldn’t be with him if he was abusive to his ex), but because the most important thing that is involved here is a poor child stuck in the middle of an abusive, volitile mother and a father just trying to do what is best.
Let’s not forget that these NMO’s are mainly in place to protect children. And I’m sorry, but if people disagree that children have the right to be protected from hearing abuse then they are just as bad as the abusers themselves. The term molestation SHOULD NOT be given a definition in statute because it allows for loopholes and people WILL abuse that, endangering peoples right to live their lives peacefully and also endangering their health and safety.
By the way, I am a law student, but I believe that the interest of people, as an individual, should be taken into consideration. And that most certainly goes for children, who don’t have much of a voice in this society!
cathyw on October 5, 2012 at 10:04 am
Be warned this can cost you alot of money. My solicitor ripped me off to the tune of £1200. I ended up being even more stressed and harrassed by my solicitors!!
sam on February 9, 2013 at 7:39 pm
What happens if the applicant that made the Non-Molestation Orders breaks it themselfs does the same apply?
margaret on February 13, 2013 at 10:03 am
my ex partner and i seperates three years ago on friendly basis .i then loaned her cash £20.000 . and she wouldnt pay me my money back when i phoned her to ask for my money she said take me to court,which i did do .then she went banckrupt, as she is a solicitor three years after we parted she took the non molestation order out ,im 63 in poor health where am i a risk to this 46 year old gold digger ,she is still working
chris coutanche on February 16, 2013 at 10:09 pm
the criteria that is necessary is found in Flr 554 c v c The argument in where i seethe problems ! this mechanism of making such applications comes at the same period when contact has been withheld deliberate, and then the fathers in most cases need to file not only a application to enforce contact,hes then defending in most cases the none molestation on unfounded allegations, that process then takes the matter to having a finding on the issue, contact is withheld by the resident parent[often the mother] ,so solicitors then advise in most cases to apply for none molestaion orders ,to make a smoke screen
Siobhan Thomas on February 18, 2013 at 8:12 pm
Would this be the best root to get my 20yr old daughter out of my home. Our relationship has broken down and she threatened me. I dont want the police in olved just want her out with tough love without getting her into trouble