What is it?
A non-molestation order is a legally binding document that protects someone from harm and harassment from another individual, commonly known as an injunction.
How does it work?
It works by setting rules and imposing restrictions on the perpetrator; this can also include protecting the victims’ children. If the perpetrator breaks any of these terms, it is a criminal offense, and they can be arrested, charged, and convicted in a criminal court. They are usually given for 6-12 months but can sometimes be longer; they can also be amended or extended if necessary.
Here are some examples of the terms that the order can contain and enforce:
Not to contact the victim directly or indirectly (indirectly to mean passing on a message through someone else) via letter/phone call/text/email/social media
Not to attend the property of the victim
Not to attend or enter any property they believe the victim to be in
Not to go within a certain distance of the victim/their property/place of work/children’s schools
Not to enter the town (with or without a distance) of the victim
Not to post or publish threatening or derogatory communication to or about the victim on social media
Not to use or threaten violence against the victim
Not to intimidate, harass, or pester the victim
Not to damage or attempt to damage any property belonging to the victim
Not to encourage or instruct any 3rd party to breach any of the terms on behalf of the perpetrator
It is important to note that the terms of these orders and how they are worded are extremely important; a slight miswording could result in a failure to secure a conviction after a breach of these terms.
Who can seek one?
They are issued by the family/civil courts and are separate from the police and criminal courts. It is free to apply. You do not need a criminal conviction against the perpetrator to apply, and anyone can approach the family/civil court to request this, including under 18’s if they have a suitable adult present. Non-molestations can be issued against ex-partners, family members/relatives, or anyone you have a familial or close connection with.
How do I apply?
You can apply for a non-molestation order yourself by completing the relevant form FL401 and taking it to your local family/civil court. You will also need to complete a statement alongside this form, and there is a supporting statement template you can use if you are unfamiliar with constructing a court statement. Please note you can also fill out a supplementary C8 form if you wish to keep your details confidential from the perpetrator. There is no fee to apply; you can represent yourself, seek the help of a solicitor, or seek the help of an organization to help you, such as NCDV or DV assist (see support page), who can guide you through the process for free. There are fees when instructing a solicitor, but if you can afford it OR think you may be entitled to legal aid (see legal aid), then do so; it is much easier.
Can this be made in an emergency?
Yes, this order can be issued without notice (ex-parte in court terms), meaning they can be applied for in an emergency without the perpetrator knowing. This is particularly helpful if you are concerned about repercussions; they are often done on the same day as the application or within 48 hours. Alternatively, a with notice application is when the perpetrator is informed of the proceedings before the first hearing.
What evidence will I need?
There are many things you can use as evidence for a non-molestation order, and you will also be asked to prepare a written statement detailing why you’d like the order and some history for context. Historical evidence can be used, but usually, an incident or pattern of behavior must have occurred or been present within the last few weeks to obtain this order.
Things you may wish to include:
· Photographs of injuries/damage to property
· Call logs or any evidence of harassing communication
· Case numbers of any police reports/incidents/convictions
· Letters of support from domestic abuse case workers/organizations/professionals/GPs/therapists that are supporting you
What happens after the application?
You will be required to attend court; if it is an emergency without notice application, the order will be temporarily issued, and papers physically served to the perpetrator. You must not serve these papers yourself, and you can request that the court does this for you; use the D89 form. If you have legal representation, your solicitor will organize a process server for you. Alternatively, you can pay for a private process server.
Please note, the order is not in place until the paperwork has been officially served.
You will then be required to come back for a further hearing, usually within 2 weeks, and the perpetrator will be invited to attend the hearing. If it is a with notice application, this will be your first hearing. The court will examine the statements from both parties and will ask the perpetrator if they agree to the order or not. If they agree, this can be granted immediately; if they do not agree, then you will be required to attend a contested hearing. The order can be granted temporarily until such a hearing.
What is a contested hearing?
Well, this order effectively goes against a person's human rights, and so they must legally be given the opportunity to prevent it from happening. During a contested hearing, both yourself and the perpetrator will be required to give evidence and ask the other party questions based on previous statements. (Please note, only legal representatives are allowed to physically ask the questions. Direct cross-examination is forbidden when domestic abuse is present). So, basically, someone else will ask the questions for you and them.
After evidence is given, the court will make a decision to grant or deny the order. Family court's standard of proof is based on the balance of probability (what they believe is most likely the truth), which is different from criminal court, which requires a beyond reasonable doubt standard (essentially more physical evidence). Effectively, someone can be found guilty of incidents or behavior that hasn't been proved in criminal court.
Will I have to see them?
Not necessarily, you can ask for special measures, which includes separate entrances to the court, screens within the courtroom, or you could be granted permission to attend via video link.
What happens if a non-molestation order is breached?
As previously stated, it is a criminal offense to break the terms of this order; any breaches should be reported immediately to the police. I strongly advise you to present your local police force with a copy of this order upon attaining it.
Does this mean they cannot have contact with my children?
Firstly, it depends if the children are named on the order. They have to be added by the court; this is not automatically done and doesn't happen in every case. If they are, then the answer is yes and no. A term could be included in this order that they may have communication with you if this involves arranging child contact or care. If you have a contact order (see child court orders), they may include a term that stipulates it is directed by said contact order. Example, NMO states they cannot contact your children, but contact order says they may have phone calls. Therefore, the perpetrator will be allowed to have phone calls with the child/children as directed by the contact order, but all other forms of contact will be forbidden as directed by the NMO.