Non-molestation orders stop the abuser (the person that the non-molestation is brought against, known as the respondent) from molesting (assaulting, abusing, harassing etcetera) the victim (who is known as the applicant) or a child.
“Molestation” is not defined in the Family Law Act 1996, but in practice, non-molestation orders are used to protect a person from violence, annoyance and threats (either verbal or written).
A non-molestation orders cover a range of behavior and conduct and are used to offer additional protection the victim party of domestic abuse.
Britton and Time Solicitors can help you apply for a non-molestation order:
It is important to note that a non-molestation order can only be made to the court by a person who is associated with the abuser/respondent (this is the requirement under section 42(2), Family Law Act 1996). Britton and Time Solicitors can advise further on who is an associated person and other considerations for domestic violence.
What if the victim and the respondent do not know each other?
Where the victim/applicant does not know the proposed respondent, they will not be able to obtain a non-molestation order.
A victim requiring protection may be able to seek an answer in the form of an order under the Protection from Harassment Act 1997.
This type of victim will have to evidence a course of conduct by the respondent abuser that amounts to harassment.
For non-molestation orders there is no requirement for the victim seeking a non-molestation order to show a course of conduct pursued by the respondent. This means that a single incident by the abuser could lead to a non-molestation order being made in favour of the victim.
What if family court proceedings are already underway?
Where there are family court proceedings, the family court will have power to issue a non-molestation order without the need for a formal application by the victim.
When Britton and Time Solicitors become aware that a client has been injured or is at risk of behaviour which is to the detriment of our client, such as domestic violence, we may make an oral application before the family court judge.
Britton and Time Solicitors will consider what evidence is already before the family court.
Without evidence, and where the allegations are not accepted by the respondent, it may not be possible for the court to issue a non-molestation order. It is vital that there is some form of evidence which may be recorded in the form of an audio or visual recording.
The family court judge is able to rely on the presentation of the parties before him or her. Britton and Time Solicitors will assess the situation and advise as to whether a formal application should be made at short notice. Sometimes this will happen without giving notice to the respondent.
What will the family court consider?
When considering a non-molestation order, the family court will review all the circumstances. This will include the need to secure the health and safety, as well as well-being of the victim or any child (section 42(5), FLA 1996).
The statutory principles focus on the health, both physical and mental safety and well-being of the victim or child.
Britton and Time Solicitors will prepare a witness statement for the victim in support of their application for a non-molestation order. The witness statement will include details of the effect of the respondent’s behaviour on the victim or any relevant child.
The family court judge will also apply the following principles which normally need to be considered:
- Evidence of molestation
- The victims need for protection
- A child’s need for protection
- The family court judge must be satisfied, on the balance of probabilities, that intervention is required by the court to control the respondent’s behaviour and protect the victim.
As previously mentioned above, there is no statutory definition of the term “molesting“. However, Britton and Time Solicitors have been successful for victims where the following has been found by the courts and considered molestation:
- Where the respondent sent nude photographs of the victim to the newspapers
- Threats of violence – both direct and indirect
- Where the respondent searched the applicant’s handbag without permission
- When the respondent wrote to the victim in an abusive way
- In a case where the respondent posted defamatory posters about the victim on the where she worked
- Where the mother beat her child
- When the respondent hacked into the victims Facebook account and posted naked photos of him
In cases where the victim invites the respondent into their home, these principles are not likely to be met (without any evidence of force or duress) and the application will probably fail.
It should be noted that a court may be more reluctant to intervene where no other attempts to control the respondent’s behaviour have not been made, like calling the police.
If the victim has not called the police for a valid reason, like a cultural reason, Britton and Time Solicitors will explain it in the victim’s witness statement.
Can you be arrested if you breach a non-molestation order?
Yes, you can. Previously, the court had to attach a power of arrest to a non-molestation order, however, breaching a non-molestation order is now a criminal offence.
What are the types of non-molestation order?
Non-molestation orders can be used for a wide variety of reasons where reasonable, as long as they outline a specific reason for the order being put in place, and that they can be understood. They can also be extended beyond the respondent to cover third parties, for example if the respondent were to ask someone else to breach the non-molestation order, the order can be drafted to prevent such a situation occurring.
Some examples of non-molestation orders include:
- The respondent not being allowed to communicate or attempt to communicate with the applicant by any means, except through their solicitor.
- The respondent being forbidden from going to, entering or trying to enter the applicant’s home address and must not come within 200 metres of it.
- The respondent is also forbidden from going to, entering or trying to enter the applicant’s place of work and must not come within 200 metres of it.
In all cases, the terms of the order must be reasonable, and drafted specifically to stop or alter the behaviour in question.
Stay away or zonal orders
“Stay away orders” and “zonal orders” are known as exclusion zones or exclusion orders as they prevent the respondent going to or entering a specific area.
Exclusion orders can be flexibly applied to areas of differing sizes, from forbidding access to rooms of a house, to a radial area around a fixed point, e.g. X metres from point Y. In the latter situation, however, it is important to acknowledge an area size that is both reasonable for the respondent to avoid and enforceable for the police and courts should the respondent be found in breach of the order. Generally, the larger the area the exclusion order is to cover, the more detail will be required to have it approved.
If the victims’s address is not thought to be known by the respondent then an exclusion order can still be applied, but the victim should ensure their address is kept confidential on application for the non-molestation order through using the ‘Form C8: Confidential contact details’.
When applying for an exclusion order, the respondent may try to vary the order if they have a legitimate need to be in the specified area. For example, their place of work may be in the area, or they may need to pass through the area as it includes vital transport links. For this reason, it is best to define a clear area using maps for the court’s consideration.
How long does a non-molestation order last?
This will be decided by the family court judge and can range from a defined period (typically a few months to a year), to ‘further order’ meaning the order will stay in place until the judge issues further orders.
Further orders are not normally indefinite, rather they are used as an interim period if further court appearances are required.
The family court judge will always seek to ensure the victim is protected at all times.
If a non-molestation order is made as part of family court proceeding and not applied for separately, it is important to note that it will be cancelled if the family proceedings are withdrawn or dismissed.
Enforcement of a non-molestation order in the event of breach:
If the respondent of a non-molestation order is found to be in breach of the order without a reasonable excuse then they are guilty of a criminal offence, provided they were aware the order was in place.
Police can stop the respondent in the act of breaching the order, or after the act has occurred.
Breaching a non-molestation order also puts the respondent in contempt of court and as such, can be enforced via civil proceedings through an application for committal. In practice, this method of enforcement only occurs when the Crown Prosecution Service chooses not to issue criminal proceedings for whatever reason.
A respondent cannot be both punished for a contempt in the civil courts and convicted of a criminal offence for the same conduct.
Committal proceedings and human rights issues
Committal proceedings are used when an order is breached, and the victim wants the respondent to be imprisoned. In the case of non-molestation orders, this typically results in the respondent losing their freedom, and breach their human rights if not done properly. Therefore, if making an application for committal, the procedural requirements must be closely followed to ensure a fair trial. If the requirements are not followed, several issues could arise, including:
- The terms of the order being insufficiently clear or unenforceable
- Whether a lawful arrest was proved
- The respondent may or may not have been brought to the court within 24 hours of arrest
- Whether or not all procedural requirements have been followed
- Whether the respondent had knowledge that the non-molestation order was in effect
- If the respondent does, or does not have representation and/or enough time to prepare a defence
To begin a committal application, notice must be given detailing the reason why an order for committal should be issued, or the proceedings can begin following an arrest under a warrant of arrest.
When applying for committal after an arrest has been made, the application for the warrant of arrest must have been be made under oath, and the court must be satisfied that the respondent reasonably did not comply with the non-molestation order.
Even if an applicant chooses not to enforce a breach of a non-molestation order, they may still wish to bring any breaches to the attention of the family court judge to justify extending the period of the order or varying it. Care should be taken by the victim as if the respondent has a strong defence for breaching an order in effect, the terms of the order could be narrowed.
What to do next?
If you are being harassed or abused by your partner, then you probable need to speak to us at Britton and Time Solicitors about a non-molestation order. We offer fixed price consultations so that you can relax and take your time when explaining your matter and requirements in a confidential environment. Speak to Britton and Time Solicitors today by navigating to the contact us page on this website or call us on 01273 726951.