In Brief: Non-Molestation Orders by Ben Cairns
Family Law and Your Personal Protection – Non-Molestation Orders
When it comes to personal protection, minds go straight to Restraining Orders, which are dealt with under Criminal Law. Within Family Law, many clients are also aware of the existence of Non-Molestation Orders, but are sometimes unclear as to what they are, the protection that they offer and the circumstances in which they are available.
Here are the key points to take into account when considering whether you may need to pursue this kind of Order.
Who can they be made against?
A Non-Molestation Order can be made against what is known as an ‘associated person’. In practice this often refers to a current or ex-partner or spouse, or sometimes a family member. Even if you never considered yourself to be in a relationship with someone, if you had an intimate relationship with them of a significant duration, or cohabited with them, then they can fall within the scope of being an associated person. If you are parents to a child then you are ‘associated persons’.
When do I/can I get this Order?
The first port of call in situations where you fear for your personal safety is always the Police. However, it is often the case that, due to a number of different factors, there are limitations as to what the Police are able to do to stop the behaviour of the ‘associated person’. One example of a situation that might mean it is appropriate to apply for an Order is where there has been Police involvement, but the behaviour continues and the Police action has not resulted in the behaviour stopping or no Police action has been taken. Generally it is important to show that there has been a recent incident or series of incidents that will allow the Court to understand that their intervention is needed to prevent ongoing behaviour.
It is also important to note that if a person has been arrested by the Police and released on bail, then this will often mean that they are bound by the conditions of this bail. In practice, the conditions placed on bail are often similar to the usual provisions contained in a Non-Molestation Order, and so in this instance a Court will not usually feel that an order is necessary. If bail conditions are in place then this may also impact on whether legal aid would be available to apply for a non-molestation order.
A brief overview of the process and the impact of the Order
It is often the case that, due to the nature of the behaviour that necessitates an application for a Non-Molestation Order, these orders are done ‘without notice’. This means that the application is made without the other party ever knowing this has taken place at first. Their application and statement in support would then be heard by a Judge, and if granted, the other party, known as the Respondent, would be served with a copy of the Order that has been made. Once this Order has been personally served on the Respondent, it takes effect, and they are prohibited from going against the provisions of the Order. A copy of the Order is also served on the Police, as one of the key advantages of a Non-Molestation Order is that breach of this order is an offence, for which the Respondent can be arrested and prosecuted.
Each Non-Molestation Order is made on a case specific basis and so the provisions in each order can vary, however the usual restrictions placed on the Respondent to a Non-Molestation Order are that they are not to contact the Applicant either directly or indirectly or through a third party. They are not to attend at their address or at any address at which they are present, , and are not to threaten or engage in any of the behaviour prohibited by the Order. There are several other provisions that can be put in place depending on the specific circumstances of a case.
A Respondent has the right to challenge an Order put in place and put their own evidence before the court. the court will consider all the evidence and decide if the Order should be in place and for how long.
What should I do if I think I might need a Non-Molestation order
Overall, a Non-Molestation Order can be a very effective tool for personal protection, which unfortunately we sometimes we require from those who have been closest to us. It is important however to know when and where they are applicable, so as to not pursue an Order that is inappropriate for your situation.
If you think you might need a Non-Molestation order call our team for a confidential discussion. We will talk to you about your situation and your options. We will also let you know whether you might qualify for legal aid and what we we need from you to make an application. You can call our friendly and understanding team on 01325 281111.
Ben Cairns is a Trainee Solicitor in our Family department and regularly advises and represents clients in non-molestation orders.
