22nd May 2024 ❘

You find yourself as the respondent to a non-molestation order, what do you do now?

By Mark Ward

You find yourself as the respondent to a non-molestation order, what do you do now?

With one in five adults experiencing domestic abuse during their lifetime and with nearly 31,000 non-molestation applications being made in England and Wales in the year ending March 2023, an increasing number of people will find themselves in the situation where they receive notice from the court that someone is making an application against them, or in some cases that an order has already been made.

So, if you find yourself in this position what steps should you take to ensure that a solution which is agreeable to both sides is reached? At Burnetts we represent both applicants and respondents in relation to domestic abuse cases and always work to reach the best outcome for all parties. We understand that matters of this kind are extremely sensitive and require the upmost care.

What is a non-molestation order?
A non-molestation order (or as its more commonly referred to a ‘non-mol’) is a form of injunction that someone can apply for through the Family Court to stop and prevent ‘molestation’ by another person.

The concept of molestation itself is a broad term and encompasses any form of sexual, psychological, or physical violence that seriously impacts upon the health or well-being of the person who is subject to the molestation. Molestation also includes conduct which does not amount to violent behaviour and applies to any conduct which can be regarded as constituting such a degree of harassment to require intervention from the court. Should someone make an application for a non-mol against you, then they will be alleging that your actions have impacted on their health or wellbeing. Within their initial application to the court, they will provide a statement outlining the factors/incidents which have led to them applying for the order.

Under the Family Law Act 1996, these types of order can only be applied for against specific categories of people known as ‘Associated Persons’. The list below sets out who is an ‘Associated Person’:

-A spouse or civil partner
-An ex-spouse or ex-civil partner
-Someone who you cohabit with or used to cohabit with (similarly you can apply for an order
against someone who lives within the same household)
-A family member or relative
-The parent of your child/children (similarly, if the order includes provision to protect children, then an associated person can be anyone who has parental responsibility for the child, is a natural parent or an adoptive one)
-A current or ex-partner
-Someone who is also a party in the same set of family proceedings.
-Someone who you have or have had an intimate personal relationship with (this relationship
must be for a significant duration of time)

If the person who applies for a non-mol against you is not an ‘Associated Person’, then you will be able to argue that the order should be dismissed on the grounds that they are not an ‘Associated Person’.

A non-mol can vary in duration but normally it will remain in force for between six and 12 months. However, where the case so requires, an order could be made for longer and extensions can be applied for if necessary.

What exactly have you received?
When you are served with documents from the Family Court, it can be a very disorienting time and you will most likely have lots of questions. When receiving court documents, it is important to work out exactly what you have received. Has the application been made on notice or without notice which is also referred to as “ex-parte”? Has an order been made by the court without notice to you? Have you been served with notice of an upcoming hearing? We can help you review the court documents and advise what you need to do next. Most applications for a non-mol are made on an ex-parte basis and for that reason we focus will focus on ex-parte applications below.

The court has made ex-parte non-mol order:
It may be that an ex-parte non-mol has been granted by the court, which will mean an order has already been made against you. If this is the case, a sealed copy of the order will be included within the court documents you have received. It is important that you comply with all the conditions contained within the order. Breaching the conditions of a non-mol is a criminal offence, and you could face imprisonment. When an order of this kind is made a power of arrest is attached to it and a copy of the non-mol will have been served upon the police. Hence, you should make sure that you comply with all conditions even if you disagree and dispute the allegations.

However, while a non-mol may have already been made against you, this does not automatically mean that the matter has concluded. Within the court documents, there will be a return date hearing notice requiring you to attend court on a specified date. At the return date hearing you will be given the opportunity to tell the court whether you agree or disagree with the order.

If you disagree with the non-mol and dispute the allegations made against you, then the court will set a time and date for a final hearing to take place. Usually, the court will also direct you to prepare a written statement responding to the application and the allegations before the final hearing. At the final hearing after all factors have been considered, the court will then reach its final decision as to whether the order should remain in place, be varied, or set aside.
No non-mol order has been made yet

In these circumstances, the court has not made an order yet and the hearing notice from the court will list the venue and time that you are to attend court and have your opportunity to make representations to the court. We would recommend seeking legal advice at this stage to discuss your options. Depending on your circumstances at the hearing you may want to disagree with the non-mol application and dispute the allegations being made or you may choose to agree the terms of a non-mol order either based on no findings of fact or possibly on the basis that the allegations made are accepted by you. We can advise you on the above options once it is clear what allegations have been made against you. In some circumstances you can also offer an undertaking to the court, and we will say more about this option below.

Undertakings:
In some cases where the allegations made do not include allegations of physical violence or threats of physical violence, it may be possible to conclude the matter by offering the court an undertaking.

In simple terms an undertaking is a written promise to the court not to perform certain actions for a specified period of time. Similarly to a non-mol, undertakings are usually made for a period of between six and 12 months. As already mentioned, an undertaking is only suitable in certain cases being those where physical violence (or the threat of it) is not alleged, and while you may choose to offer an undertaking to the court, the court does not have to accept it. Furthermore, even if the court accepts your offer of an undertaking, the applicant is under no obligation to do so. In those circumstances the case would proceed to a further hearing.

An undertaking is similar in nature to a non-mol when considering the potential consequences of breaching it, as you can potentially be fined or sent to prison. However, unlike a non-mol there is no power of arrest attached to it, and should you breach the undertaking then you cannot be arrested for it immediately by the police. Upon breach, enforcement of an undertaking would become a private matter which the applicant would be responsible for bringing to the court’s attention. However, it should still be noted that breaching such a promise can lead to fines, having your property seized and committal to prison in serious circumstances.

Therefore, an undertaking should not be seen as less onerous than a non-mol, as you are making a binding promise to the court and failure to comply with the conditions can have serious consequences.

We would always advise that you seek the help of a legal professional in dealing with matters of this kind and at Burnetts we have an experienced team who are able to deal with these types of applications.

Need Further Advice?
Should you need further advice in relation to obtaining or responding to a non-molestation order, then you can get in touch with us on 01228 552222 and ask to speak to our Family team.