1. Statutory Framework & Core Thresholds

To secure an NMO, the court must navigate specific statutory requirements set out in the FLA 1996:

• Personal Connection ("Associated Persons"): Under Section 62 FLA 1996 , the applicant and respondent must be "associated". This includes current or former spouses, civil partners, cohabitants, individuals who have been in an intimate personal relationship of significant duration, relatives, or parents of a shared child.

• The Statutory Test (Section 42(5)): In deciding whether to make an order, the court must have regard to all the circumstances, including the need to secure the health, safety, and well-being of the applicant and any relevant children.

2. Defining "Molestation"

The statute does not explicitly define "molestation," leaving its interpretation to the judiciary. Case law dictates that molestation is broader than physical violence—it covers any conduct that troubles, pesters, or causes significant alarm and distress.

Key Case Law: What Constitutes Molestation?

• Horner v Horner [1983] 4 FLR 50: Established that molestation is a wide concept. Conduct does not need to be physically violent to amount to molestation; it is enough if it is calculated to cause significant alarm, distress, or harassment.

• C v C (Non-Molestation: Jurisdiction) [1998] 1 FLR 554: Emphasized that there must be positive evidence of molestation and a clear need for protection.

• C v C [2002] EWCA Civ 1625: The Court of Appeal confirmed that the judge must be satisfied on the balance of probabilities that judicial intervention is genuinely required to control the behaviour of the respondent.

3. Guiding Principles for "Without Notice" (Ex Parte) Applications

Applications made without notifying the respondent in advance are treated as an exceptional step because they infringe upon the respondent's procedural rights. Recent authoritative guidance (including updated Judiciary guidance and landmark judgments) outlines strict criteria.

Key Case Law & Guidance: Without-Notice Orders

• DS v AC [2023] EWFC 46: Lieven J synthesized the core legal principles governing without-notice applications under Section 45 FLA 1996 :

• 1. Is there a risk of significant harm to the applicant or child attributable to the respondent if the order is not made immediately?

• 2. Is the applicant likely to be deterred or prevented from pursuing the application if forced to give notice?

• 3. Is there a reason to believe the respondent is deliberately evading service, leading to serious prejudice through delay?

• Proportionality and Clear Return Dates: Without-notice orders must be time-limited with a mandatory "return date" fixed quickly to allow the respondent a fair opportunity to contest the findings.

4. Drafting Precision and Enforcement

Because a breach of an NMO is a criminal offence under Section 42A FLA 1996 (carrying a maximum penalty of up to 5 years' imprisonment), the wording of the order must be legally watertight and crystal clear.

• Avoiding Ambiguity: Broad, generic phrases like "must not behave badly" are unenforceable. Modern judicial guidance specifies that prohibitions must target explicit actions (e.g., specific communication channels, exclusion zones with precise measurements).

• Interaction with Criminal Law: Standard non-molestation terms should not unnecessarily replicate blanket criminal prohibitions (like "do not commit assault"), but rather target specific harassment or localized boundary breaches that give police immediate, actionable parameters.