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Understanding Non-Molestation Orders in Family Law

Non-molestation orders are legal provisions aimed at preventing harassment and distress towards associated persons or relevant children. The concept of "molestation" is context-specific and involves deliberate conduct causing significant harm or distress, justifying court intervention. Recent case law emphasizes the need for a careful evaluation of conduct to determine if it meets the threshold for such orders. Key aspects include the impact on the applicant, exclusion zones in orders, definitions of associated persons, service requirements, and considerations for witness statements in applications for non-molestation orders under Section 42 of the Family Law Act 1996.

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Understanding Non-Molestation Orders in Family Law

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  1. Family Law Act 1996 Best Practice Lisa Hannant & Sally Gore Fenners Chambers

  2. Proving “molestation” Section 42 (1) FLA 1996: (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.

  3. Proving “molestation” – C v C (Non-Molestation Order – Jurisdiction) [1998] 1 FLR 554 Sir Stephen Brown P. “. . . there is no legal definition of “molestation”. Indeed, that is quite clear from the various cases that I have cited. It is a matter which has to be considered in relation to the particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court.”

  4. Re T (A Child) (Non-Molestation Order) [2017] EWCA Civ 1889, [2018] 1 FLR 1457 McFarlane LJ said at [27]: “In the decades that have followed those judicial utterances, those sitting in the family court have, on a day by day, case by case, basis, deployed good sense and judgment in determining whether or not particular conduct amounts to “molestation”. In my view this court should continue to be very wary of offering any further precision in the definition”.

  5. Re T (A Child) (Non-Molestation Order) [2017] EWCA Civ 1889, [2018] 1 FLR 1457 And at [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 (1983) 4 FLR 50 and CvC (Non-Molestation Order: Jurisdiction) [1998] 1 FLR 554).’

  6. Recent Case Law - The judgment of Sir Andrew McFarlane in the case of Re Al M (non- molestation application) [2020] EWC 3305 (Fam); [2022] 2 FLR 179 Para. 35: “What is needed to justify the intervention of the court is some form of deliberate conduct which has the effect on the applicant of harassment to such a degree that the court's protection is called for. The negative impact on the applicant can include elements of psychological and/or emotional harm. The conduct of the respondent, whilst being deliberate, does not need to have been with the intention of causing that harm”.

  7. Recent Case Law (2) In Re C3 and C4 (Child Arrangements) [2019] EWHC B14 (Fam) (1 August 2019)

  8. Non-Molestation Orders with an Exclusion Zone • Should not be used in cases were there is a right to occupy property under s.30 Family Law Act 1996 [See McFarlane P. in the case of Re Al M (non-molestation application) [2020] EWC 3305 (Fam); [2022] 2 FLR 179 at [36] • Express statutory provision permits including an exclusion zone in an occupation order. • However, the lack of an equivalent statutory provision in s.42 FLA does not prevent an exclusion zone forming part of a non-molestation order (McFarlane P in Re AI at [42]-[45]). • Their inclusion should be justified and not automatic!

  9. Definition of ‘associated persons’ • Section 62(3) now contains a very broad definition of “associated persons” • One very recent case: D v T [2023] EWFC 97, 9thJune 2023 (Reported on Westlaw)

  10. Service of an order • Must attempt personal service first prior to making an application for substituted service. • The order must also be lodged with the police station local to the applicant / person being protected.

  11. Witness Statements - Think about the best available evidence; - History is relevant but recent events more so; - Event(s) which precipitated the application?

  12. Witness Statements (2) - Present the best available evidence at the first opportunity; - Exhibit evidence if you intend to rely on it; - Is the Respondent on bail???

  13. Witness Statements (3) • Where an application is made for an ex parte order, the witness statement needs to explain why a without notice hearing is necessary. • Section 45(2) FLA 1996: 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.

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