If your application is urgent and without notice the court may grant an interim Non-Molestation Order that is served on the other party by the court. The court will then set a return date for both parties to attend court for a Dispute Resolution Appointment.

If the application is not urgent or without notice, then the court will set a date for both parties to attend for the first hearing.

a) The respondent can propose accepting a Non-Molestation Order on a no fault or no admissions basis.

b) The respondent can offer a formal undertaking on a no fault or no admissions basis.

If there is no resolution at the first hearing the court will set a date for a final hearing and will determine whether an interim non-molestation order is needed.

1996 (FLA 1996), namely “all the circumstances including the need to secure the health, safety and wellbeing (a) of the applicant; and (b) of any relevant child.”

The following three principles should also be considered when deciding whether to make a Non-Molestation Order:

a. There must be evidence of molestation (C v C [1998] 1 FLR 554);

b. The Applicant must need protection; and

c. The judge must be satisfied on the balance of probabilities that judicial intervention is required to control the behaviour which is the subject of the complaint (e.g. C v C [2001] EWCA Civ 1625).

In terms of what constitutes molestation, this includes any conduct which can properly be regarded as constituting a degree of harassment such as to call for the intervention of the court. (C v C [2001] EWCA Civ 1625; Horner v Horner [1982] 1 All ER 495).

In R v R (Family Court: Procedural Fairness) [2015] 2 FLR 1005, Peter Jackson J stated, interalia, that : “Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a persons freedom of action and require specific evidence to justify them” and that a judge faced with Family Law Act applications should always ask “‘why?’ and not ‘why not?’”

Furthermore, as stated by Lieven J in DS v AC [2023] EWFC 46 [§26], “…the conduct has to be sufficient to justify the intervention of the court. Orders should not be granted where the evidence suggests that there is some upset at the end of a relationship, and little or nothing to suggest the conduct complained of would amount to ‘molestation’.”

Other Principles

• "molestation" does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court,  Horner v Horner  at 51G;

• The primary focus of the court should be upon the "harassment" or "alarm and distress" caused to those on the receiving end,  Re T (A Child) ;

• There does not have to be a positive intent to molest,  Re T  at [42].

Without Notice Applications

a.On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a);

b. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);

c. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at [1];

d. The Court should use its powers under the FLA with caution, particularly at a one-sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at [1]

CLICK HERE for more principles and case law on Non-Molestation Orders

See Also

• Breaches of Non-Molestation Orders
• Ex-Parte Orders
• Discharge and Variation of Orders

L (Children), Re [2012] EWCA Civ 721 (04 May 2012)

The mother and father had eight-year-old twins. Following the breakdown of their relationship, a number of heated arguments followed. The mother applied for an occupation order to have the father excluded from the property. The court found the children were being adversely affected by their parents’ arguments and held that the twins were likely to suffer significant emotional harm as a consequence. See Judgement

Grubb v Grubb[2009] EWCA Civ 976,

An occupation order was successfully granted when no violence or significant harm had occurred See Judgement

Dolan v Corby [2011] EWCA Civ 1664

“an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature”. See Judgement

"… [A]ny conduct which can properly be regarded as such a degree of harrassment as to call for the intervention of the court."