| General Disclaimer: Nothing
presented constitutes legal advice and the
McKenzie Friend UK Network is not a legal entity
or in anyway claims to be a 'legal resource'. The
resource guide is supported by McKenzie Friends
and Litigants in person for Litigants in Person
in Family Court. McKenzie Friends provide
layperson support as an informed friend under the
Family Court Practice Guidance of 2010. All
information is published under the spirit of that
guidance. For any corrections of the information,
please contact the McKenzie Friend UK Network
|
| |
|
| |
| Principles
of Non Molestation Orders
|
| |
|
| |
| |
| The full principles
of Non Molestation Orders is set out by Justice Lord
Levine:
Citation Number:
2023] EWFC 46
Case
No: BM22F06163
The power to
grant a Non-Molestation Order is set out in s.42 FLA,
which states:
Non-molestation orders.
(1) In this Part a
"non-molestation order" means an order
containing either or both of the following
provisions—
(a) provision prohibiting
a person ("the respondent") from
molesting another person who is associated with
the respondent;
(b) provision prohibiting
the respondent from molesting a relevant child.
(2) The court may make a
non-molestation order—
(a) if an application for
the order has been made (whether in other family
proceedings or without any other family
proceedings being instituted) by a person who is
associated with the respondent; or
(b) if in any family
proceedings to which the respondent is a party
the court considers that the order should be made
for the benefit of any other party to the
proceedings or any relevant child even though no
such application has been made.
…
(5) In deciding whether to
exercise its powers under this section and, if so, in
what manner, the court shall have regard to all the
circumstances including the need to secure the
health, safety and well-being—
(a) of the applicant F97.
. . ; and
(b) of any relevant
child.
(6) A non-molestation order
may be expressed so as to refer to molestation in
general, to particular acts of molestation, or to
both.
(7) A non-molestation order
may be made for a specified period or until further
order.
(8) A non-molestation order
which is made in other family proceedings ceases to
have effect if those proceedings are withdrawn or
dismissed.
The power to
grant such an order on a without notice application is
set out in s.45 of the FLA, which states:
|
| |
|
| |
Ex parte orders.
(1) The court may, in any
case where it considers that it is just and
convenient to do so, make an occupation order or a
non-molestation order even though the respondent has
not been given such notice of the proceedings as
would otherwise be required by rules of court.
(2) In determining whether to
exercise its powers under subsection (1), the court
shall have regard to all the circumstances
including—
(a) any risk of
significant harm to the applicant or a relevant
child, attributable to conduct of the respondent,
if the order is not made immediately;
(b) whether it is likely
that the applicant will be deterred or prevented
from pursuing the application if an order is not
made immediately; and
(c) whether there is
reason to believe that the respondent is aware of
the proceedings but is deliberately evading
service and that the applicant or a relevant
child will be seriously prejudiced by the delay
involved in effecting substituted service.
(3) If the court makes an
order by virtue of subsection (1) it must afford the
respondent an opportunity to make representations
relating to the order as soon as just and convenient
at a full hearing.
|
| |
| Case Law 1:
There have
been very few reported cases on the correct approach to
granting a Non-Molestation Order in recent years. There
is no statutory definition of "molestation". In Horner v Horner
[1983] 4 FLR 50 Ormerod LJ
said at p.51G:
|
| |
| |
"…
[A]ny conduct which can properly be regarded as
such a degree of harrassment as to call for the
intervention of the court."
|
|
| |
| Case Law 2:
In C
v C
[2001] EWCA Civ 1625
Hale LJ held that the granting of a
Non-Molestation Order was justified where the conduct
completed of "was calculated to cause alarm and
distress to the mother".
|
| |
| Case Law 3:
In Re T (A
Child)
[2017] EWCA Civ 1889
McFarlane LJ referred to these
authorities with approval and said the courts should be
very wary of offering any further precision to the
definition of "molestation". He went on to say
at [42]:
|
| |
| |
" 42.
When determining whether or not particular
conduct is sufficient to justify granting a
non-molestation order, the primary focus, as
established in the consistent approach of earlier
authority, is upon the 'harassment' or 'alarm and
distress' caused to those on the receiving end.
It must be conduct of 'such a degree of
harassment as to call for the intervention of the
court' ( Horner v Horner and C v B ). Although in
C v C the phrase 'was calculated to cause alarm
and distress' was used, none of the authorities
require that a positive intent to molest must be
established."
|
|
| |
| Case Law 4:
In R v R
[2014] EWFC 48
Peter Jackson J considered an appeal
relating to a Non-Molestation Order which had originally
been granted at a without notice hearing. He said at [1]:
|
| |
| |
" 1.
This judgment follows a hearing on 18 November
2014 at which I allowed an appeal against a case
management order made by a District Judge in
proceedings under the Family Law Act 1996. The
case highlights important principles, applicable
to all such cases:
(1) The default position of a
judge faced with a without notice application
should always be "Why?" , not "Why
not?" As has been repeatedly stated, without
notice orders can only be made in exceptional
circumstances and with proper consideration for
the rights of the absent party.
(2) The court should
use its sweeping powers under the Family Law Act
1996 with caution, particularly at a one-sided
hearing. Where an order is made, it is the
responsibility of the court (and, where
applicable, the lawyers) to ensure that it is
accurately drafted. This consideration applies
with special force when a breach of the order
will amount to a criminal offence.
(3) 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 person's freedom of action and
require specific evidence to justify them.
(4) The power to
penalise non-compliance with case management
orders should be used firmly but fairly, in a way
that supports the overriding objective rather
than defeating it. The court should apply the
rules (here specifically FPR r.4.6 ) with that
aim.
(5) The court should
be on guard against the potential for unfairness
arising from the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 , whereby the
applicant is entitled to legal representation as
a result of unproven allegations, while the
respondent is not. In this case, the fact that
one party had no legal advice at any stage was
critical to the outcome."
|
|
| |
|
| |
| |
| Overarching Principles
|
| |
| The
following principles can be extracted from the FLA and
the caselaw:
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];
e. "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;
f. 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)
;
g. There does not have to be a
positive intent to molest, Re T
at [42].
|
| |
|
