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What is a non-molestation order?
There are two main types of family court order that can protect someone from domestic abuse, non-molestation orders and occupation orders. These are court orders so you will have to go to court to get one.
Molestation is not defined in the Family Law Act but it means harassing you. A non-molestation order is therefore an order that bans someone from harassing you (or getting someone else to do that on their behalf), or from harassing a child.
A non-molestation order will only be made by a court if the other person’s behaviour is serious enough to justify a court getting involved. It is not necessary for there to have been physical abuse.
An order might ban the abuser from all contact with you or only some contact, or only contact that is harassing, or only certain acts or molestation. Some orders will also ban someone from the area near your house, if they have no legal right to be in the house. Some orders allow contact which is about the children only.
The order will usually last six to twelve months but you can apply to renew it if it is still needed.
There is an example order in this guidance for judges.
Who can apply?
To apply for a non-molestation order, you have to be an ‘associated person’ of the respondent (the person you are seeking the order against). This means
You are or were married or civil partners
You are or were engaged to be married or have a civil partnership and that ended fewer than three years ago
You lived together as cohabitants, meaning as though you were husband or wife (and not just flatmates)
You are or have been in an intimate personal relationship with one another which was of significant duration
You live or have lived in the same household except only because one of you is the other’s employee, tenant, lodger, or boarder
You are both parents of or have parental responsibility for the same child.
One of you is a birth parent and the other is the adoptive or placement parent
You are both parties in the same family proceedings (other than for non-molestation orders or occupation orders), such as in the same children case.
You are relatives who are father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of the applicant or of that person’s spouse, former spouse, civil partner or former civil partner, or brother, sister, uncle, aunt, niece, nephew or first cousin (including half-blood and in-laws) of the applicant or of that person’s spouse, former spouse, civil partner or former civil partner.
Non-molestation orders and children
Although the law defines domestic abuse as between those over 16, you don’t have to be 16 to apply for a non-molestation order. Where an under 16 is being harassed by a boyfriend or girlfriend, the court will consider whether they have had a relationship of significant duration (which is the ground they are likely to have to use), but take into account their ages when considering what is significant. Any application by a child will need the court’s permission before it can proceed and the court will need to be sure that the child has sufficient understanding to bring the case. Seek legal advice in this situation (the child should be able to get legal aid).
In most cases, however, a parent is the associated person who is eligible to apply and makes an application that covers both themselves their children. The children who can be covered by a non-molestation order are:
A child who is living with either party
A child who might reasonably be expected to live with either of you
Any child who’s the subject of family proceedings such as child arrangements, special guardianship, or adoption
Any other child that the court thinks it should protect.
We have put the law into language that it is easier to understand. If you are not sure whether you are covered by the law, seek legal advice as a solicitor can check the Family Law Act’s exact wording.
Help with making an application
Legal Aid is available to people for non-molestation order applications and occupation order applications where they are on a low income or have limited savings. You will need evidence that you have suffered domestic abuse in order to get legal aid. The government website gives ideas of that evidence you might be able to get.
There are no court fees but legal aid would help you because a lawyer would write the application for you and either they or a barrister would represent you at court.
It can be difficult to find legal aid solicitors in this area [link to short guide].
You can get help from:
FLOWS, an organisation that runs CourtNav. This is an online programme that helps you write the application and a legal advisor then checks it. It is all free. While FLOWS helpline only helps women, CourtNav can be used by anyone.
Norfolk Community Law Service, which offers free appointments to discuss your legal options and can help with an application. NCLS does not represent people at court so you would need to represent yourself or hire a barrister to represent you.
Making the application
You are known as the applicant. The abuser is called the respondent. The respondent is the name we give to the person the application is against.
To apply for a non-molestation order you need to:
Fill in form FL401
Write a witness statement explaining what has happened and why you need an order
A draft of the order that you want, if you can
You then send these to your local court. There is no court fee to pay (it is free) and you do not need to do a help with fees application.
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You can apply for an order:
Without notice (ex parte), which means that it is made without the other party knowing you have applied for it. The first time they learn of it would then be when they are served with it and bound by it.
On notice, meaning that the court lists a hearing you both attend and will decide at that hearing whether to make the order.
In Norfolk, the first available district or circuit judge will read your application. If they think that you need immediate protection, they will make the order without notice to the other party.
Making the order without hearing from the other party is the exception rather than the rule but may be appropriate if the judge is worried that without the order being made then and there you might be coerced by your abuser into not going ahead or you or the children are at risk of significant harm without this.
If the judge thinks that the evidence is not clear, or not serious enough, they will not make the order without notice but the judge will hold a hearing within 21 days when you and the respondant will both attend.
If you are worried that the order has not been made and you can't wait up to 21 days, you can ask for a without notice hearing for reconsideration. You must request this within 2 working days and it should be heard withing 5 working days.
There is guidance for judges about when they can make an order without notice and what the order should say. There is also an example order.
Writing your witness statement
A witness statement explains to the judge why you need the protection of an order.
There is a really good guide by Rights of Women which explains what your statement should cover.
There is also an example in the annex to the guidance given to lawyers.
Remember that this is an emergency form or protection. Organise your statement with headings so that it is easy for the judge to read, as they will do so quickly among their other work. At the same time, it needs to be detailed enough for the judge to know whether you need protection. Sometimes it can help to have a summary section at the beginning.
Think of it like a true story. Use your own words and don’t try to sound legal – that’s not what a witness statement is for.
There is a template witness statement on the government website. You can print this or you can type into it and save it.
You can attach ‘exhibits’ to your statement. An exhibit is evidence that supports your case that you need protection. An example would be a print out of text messages that are harassing. You need to number your exhibits and refer to them in your witness statement as Exhibit 1, 2 etc. You then attach your exhibits to the back of your witness statement and in front of each exhibit you have a cover sheet that gives the number of the exhibit. At the end of the template witness statement there is a cover sheet you can print and use.
Serving the order
Once you have the order, you need to arrange for the order to be personally served, meaning that it has to be handed to the respondent – the person the order is against. It cannot just be posted to them. You cannot hand it to them yourself. It is best to use a process server such as Taylor Investigations or a court bailiff, who will find the respondent and give them the order. If you want a court bailiff to serve the documents, complete form D89. There is no court fee for asking a bailiff to serve this type of order. A private process server will charge you.
The order protects you as soon as the respondent knows about it.
The return date
If the order is made without notice then it is only temporary and the court will list a further hearing to consider the application properly. This is known as a ‘return date’. Similarly, if the judge decided not to make the application without hearing from the respondent, then the court will list a hearing. The respondent will have the chance to write their own witness statement and get their own evidence together. You and the respondent will give evidence and the court will decide whether to make the order for a longer period, usually about a year.
If you are worried about seeing your abuser at court, then ask for special measures.
Undertakings
It’s pretty common for the parties to compromise an application by both agreeing not to speak to the other, or for the respondent to offer an undertaking. An undertaking is a solemn promise to the court, so this would be a promise not to harass you. This would be written on the court order and signed, but it would not be under the bit that said ‘the court ordered’.
An undertaking might be offered because it does not require the court to find that your abuser is indeed abusive – it is offered without any admission that the abuser has done anything wrong. This is obviously to their advantage, but the benefit to you is that it avoids the need for you to give evidence, or the risk of the court not believing you. You can also rely on the undertaking as evidence of domestic abuse, in order to get legal aid.
Undertakings are enforceable, but only through bringing proceedings for contempt of court (see below). The police cannot arrest someone for breaching an undertaking.
Courts must not accept undertakings instead of making a non-molestation order if the respondent has used or threatened violence against you or a child, and it is necessary to be able to have the order so you can have them arrested in case of breach.
Sometimes the parties give cross-undertakings, which are promises not to harass each other. You can’t use cross-undertakings to get legal aid.
Enforcing a non-molestation order
A breach of a non-molestation order can be addressed in one of two ways:
You can apply to court for the respondent to be held in contempt of court. Sanctions for contempt include a fine and/or imprisonment. This application needs to be done carefully as any errors will invalidate it.
You can ask the police to arrest the respondent for the breach, and take them through the criminal courts. This option is not available if you have got an undertaking but not an order.
If someone has applied for a non-molestation order against you
This means that you are the respondent. Allegations have been made against you, and you will need to respond to them. Even if an order has been made already, this is only a temporary holding position to protect the applicant while the evidence is gathered to hear the case properly.
Do not attempt to dodge the person attempting to serve you with the court order. You need to know what it says and when the next court date (the return date) is, so you can have the maximum time to prepare.
Read the witness statement of the applicant carefully. You will need to write a witness statement in response. Get together any evidence that contradicts what the applicant says.
Complete form FL435 - Response to a non-molestation order and post it to the court and the applicant so they receive it at least 5 days before the hearing.
You will need to go to court on the return date. The return date is when the court decides whether to make the order or, if it has made a temporary order already, whether it should make the order for six months or a year.
If you have behaved badly, you might want to agree not to contact the other party or to contact them only about certain things, like arranging child contact. You could offer an undertaking (a solemn promise) not to repeat this behaviour. That would be something written and signed and approved by the court. An undertaking is enforceable – a breach could result in a fine or going to prison. It does not mean that you accept that you behaved in a way that was molestation. Courts must not accept undertakings instead of making a non-molestation order if the respondent has used or threatened violence against the applicant or a child, and it is necessary to be able to have the order so that you can be arrested in case of breach.