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
 
Non-Molestation Order Guide
 
 
 
STEP 1: The application for Non-Molestation order
 
Applying for a Non-Molestation Order in the UK is a legal process that aims to protect you and your family from domestic violence or harassment. Applications are made under Part 4 of the Family Law Act 1996. Here's a step-by-step guide on how to apply for a Non-Molestation Order:
 
 
Contact a Trusted McKenzie Friend from the McKenzie Friend UK Network. You don't need paid lawyers in the family court.
 
 
Gather evidence: To support your application, collect evidence of the abuse or harassment you have experienced. This may include photographs of injuries, text messages, emails, letters, witness statements, or any other relevant documentation.
 
 
Fill out the application form called the FL401.
 
 
 
Write and submit your evidential statement with the FL401: Write a detailed statement explaining the incidents of abuse or harassment you have experienced. Be clear, factual, and concise in your statement. Include dates, times, and locations if possible. Our Trusted and Trained McKenzie Friend members of the Network can help you.
 
 
 
Is you application an urgent and without notice application?

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.

 
 
At the first hearing the Judge will determine whether the matter may merit the need for an interim non-molestation order if not already served. The court will want to understand the position of the respondent, as to whether the accusations and allegations are admitted and whether a non-molestation order is acepted. If the accusations are denied, the Judge may set a date for a Contested Hearing and the respondent will be provided with the opportunity to file and serve their evidential statement and any evidence in response to the allegations.
 
 
At the Dispute Resolution Appointment, there are other options to consider to reach a resolution:

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.

 
 
Note: Service of documents: If the court grants a Temporary Non-Molestation Order or schedules a full hearing, the relevant documents will be served on the respondent, (the person you are seeking protection from), by the court or a process server. Never serve the papers yourself.
 
 
If the court is satisfied that you have reasonable grounds for the application, they will issue a Non-Molestation Order. This order will specify the prohibited behaviors, and it can last for a defined period, typically between 6 months and 1 year.
 
 
Breach of the order: A breach of the Non-Molestation Order is a criminal offence and carries the power of arrest. These pack a punch with significant fines and the real potential for imprisonment. The bottom line is don't breach them.
 
Resources:
 
 
The General Principles
 
The criteria for the making of a Non-Molestation Order are set out in s.42(5) Family Law Act

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

 
CASE LAW
 
COMMON 'MUST KNOW' CASE LAW
 

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

 
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."

 
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"
 
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".
 
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.
 
 
Resources
 
The Case Law National Archive
 
 
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Resources:
 
The Case Law National Archive
 
 
 
DIRECTOR
 
 
Philip Kedge is a retired police Chief Inspector and the founder and director of the McKenzie Friend UK Network. His aim is to take family court matters out of the hands of lawyers with an ethical business to reduce conflict and acrimony, to provide access to cost effective McKenzie Friend national services, to offer training and to reduce the emotional harm to children.
 
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