Non-molestation orders
When somebody needs immediate protection from a partner, ex-partner or family member they can make an application for a court order called a non-molestation order.
What is a non-molestation order?
A non-molestation order is an injunction that tells the other person things they must not do. If they ignore the order and do one of the things that are prohibited (not allowed) it is a criminal offence and the police can arrest them. This is called a breach. They could face time in jail.
Typically, an order will prevent an ex-partner from;
- Intimidating, pestering or harassing you;
- Using or threatening violent towards you or your children;
- Communicating with you or your children (except perhaps through lawyers or a specific method);
- Harassing you or your children by going to certain places (i.e. – your house, workplace or school)
- Encouraging others to do anything they are not allowed to do.
How long does a non-molestation order last?
The judge decides the duration of non-molestation orders. Generally, a district judge grants non-molestation orders for a duration of between 6 to 12 months.
The courts also have the power to extend the non-molestation order if necessary.
How does the law define a non-molestation order?
It is an order which is ‘injunctive’ –. i.e. it seeks to prevent the person against whom an application is brought (the ‘respondent’) from acting in a specified manner. ‘Molestation’ is not defined or limited,; and the court takes a very broad approach as to what constitutes harm, meaning the order can address particular behaviour.
The law is clear that there does not have to be a positive intent to molest. However, that does not mean that the test is a wholly subjective one, whereby the Applicant simply has to feel distress to justify the making of an order.
The court adopts a three-stage test when considering whether to make a non-molestation order under s.42 FLA 1996:
- Is there evidence of molestation?
- Does the applicant need protection?
- On the balance of probabilities, is a court order required to control the respondent’s behaviour?
An applicant must be able to satisfy all three hurdles in order to succeed.
Most Orders are obtained against a partner or ex-partner. However there are other connections which will be considered and the Court can assist a potential victim against any “associated person.”
Non-molestation orders are a form of personalised injunction granted by the family courts to protect individuals from harm or threats of harm.
However, there are circumstances where alternatives may be more appropriate, or even necessary. Three alternative ways in which a person can find protection from unwanted behaviour include:
- Warning Letter
Sometime a warning can act as a deterrent to further behaviour or at least as support to the need for an Order if the behaviour continues.
- Undertakings
Sometimes the court will look to extract a promise from a respondent that they will not behave in the same way again within the non-molestation proceedings. The advantage of an undertaking is that the respondent does not have to admit that they have done anything wrong, and therefore they are more likely to promise not to carry out the behaviour subject of the complaint.
The main disadvantage of an undertaking is that no power of arrest can be attached; so the applicant will have to come back to court to enforce the undertaking, rather than simply calling the police for a breach.
- Restraining Orders
Restraining orders are a common alternative to non-molestation orders. Unlike non-molestation orders, which are granted by the family courts, restraining orders typically follow criminal proceedings and are given by a judge sitting in the Crown or magistrates’ courts.
Restraining orders are usually used when there have been criminal proceedings against a person. They can be obtained when someone is a victim of a crime and they require protection from harassment or fear of violence by the perpetrator for a specified period or until a further Order is made.
- Police Intervention
In cases where immediate danger is present, contacting the police should be the first course of action. If someone has subjected you to domestic violence or has made threats against you and your family, they have committed a criminal offence, and you should notify the authorities immediately.
The police could, for example, bring charges of assault or prosecute for an offence under the Protection from Harassment Act 19971. In some cases, a non-molestation order can be used to complement or follow up the action that police take.
