A non-molestation order can be acquired in the right circumstances to keep a person safe from harm and control the behaviour of the alleged perpetrator. Upon consideration of the application, a judge will decide if the circumstances require such an order, how long it should be in place and what the restrictions will be on the person subject to this order.
If there is violence or domestic abuse involved then please understand that it must be reported to the police as this is a crime. The police shall advise that you should obtain a civil injunction (also known as a non-molestation order) to prevent further problems from arising and if they are unable to take any further action at that time.
Domestic abuse can be an incident, or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual offence. As mentioned before, if you are subject to any of these acts, the police must always be called.
What is a Non-Molestation Order?
A non-molestation order is an order that one party does not molest, harass or threaten the other. The order is typically issued to prohibit an abuser from using or threatening physical violence, intimidating, harassing, pestering or communication with the Applicant. An order could prevent one party from coming within a certain distance of you, your home address or even attending your place of work.
Who can it be applied to?
A non-molestation order can be applied to any partner, a previous partner or any of the following:
- A spouse or ex-spouse
- A civil partner or previous civil partner
- A fiancé or ex-fiancé
- Someone with whom you are living
- Someone you used to live with
- The father or mother of your child
- A family member
- Someone with whom you have had an intimate personal relationship
Without Notice Application (ex-parte)
Non-molestation orders can be made ‘without notice’ and without the other party’s knowledge. An ex-parte injunction application is an application where the other party will not have been made aware of the injunction proceedings in advance of the hearing.
Ex-parte injunction applications are an emergency measure and they are an opportunity for a District Judge to be asked to make ‘injunctive’ or ‘protective’ orders without the person from whom you are seeking protection being aware that a court is making an Injunction Order against them.
Ex-parte injunction applications are usually brought by a person who requires the immediate protection of the court from violence and harassment.
Relevant Circumstances Considered By The Court
In determining whether to exercise its powers ex-parte, the court must have regard to all the circumstances including:
(a) any risk of significant harm to the applicant due to the 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 and is deliberately evading service and that the applicant will be seriously prejudiced by the delay involved.
Undertakings
If it is an on-notice hearing (also known as an inter-partes application) where both parties are in attendance then there is an opportunity to consider whether an undertaking, which is a formal promise to the court, is more suitable. This undertaking does not mean that the respondent has admitted liability or that they have done anything wrong.
It is relatively common for parties to agree to cross-undertaking, whereby they both promise not to commit an act against the other. An undertaking has the same effect as a court order, if broken it may lead to prison.
Return Hearing and Contested Hearings
After a without notice hearing and where an applicant has successfully obtained a non-molestation order, the order is not effective until it has been served upon the respondent. The court may list a return date hearing or the respondent, in the matter, could request for a Hearing so that they may inform the court of the arguments against the necessity for a non-molestation order. In the hearing, the respondent puts their side to the court and upon consideration, the judge can order for the non-molestation order to be dismissed in favour of an undertaking.
It may also be listed for a contested hearing due to the veracity of the allegations. The matter will be determined by the court with sworn evidence being heard whilst the non-molestation order remains in force.
Duration of Non-Molestation Orders
A non-molestation order can be issued for a certain defined period of time or until a further order is made. The length of the order will depend upon the extent to which the terms of the order affect the applicant and the respondent.
Breaches of Non-Molestation Orders
Breaching a non-molestation order is a criminal offence that comes with a possible prison sentence of up to five years. If the non-molestation order is breached then an arrest may follow and the respondent may be charged and brought before a criminal court for conviction.
Legal Advice on Non-Molestation Orders
At Witan Solicitors, we are experienced in dealing with non-molestation matters. We can talk you through the intricacies involved whilst applying for a non-molestation order, representing you throughout the entire process and the legal process.
If you would like to discuss any aspect of the non-molestation order or the proceedings with an expert family lawyer, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in London, Birmingham and Northampton.
