Non-Molestation Orders

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.  It also covers using physical violence.

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 of 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 communication 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 is 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. Download this guide on legal aid.

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 

The person applying for the non-molestation order is known as the applicant. The application will be against your abuser, who is known as the respondent.

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.

If you want help with the application you can use CourtNav. They help fill in the form and check it.

When you send your application to court, this is what happens.

In Norfolk, the process is that the first available district or circuit judge will read your application.

They might decide to make a temporary order immediately, or the judge might not decide then but call a hearing.

Without notice hearings

If the judge thinks that you need immediate protection, they will make the order without notice to the other party. This means that the judge will make the order and then you need to arrange for the order to be given to the respondent. By the time the respondent knows about the order, it is in already in force to protect you.

Making the order without hearing from the other party is known as an 'ex parte' or 'without notice' application. It is the exception rather than the rule. A judge might make the order without notice:

• 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 the order being made straight away.

When a judge makes an order without notice like this, it's only temporary. The judge will reconsider it at a court hearing known as the 'return date', when it will hear from both you and your ex and decide whether to make the order for longer term. Until this hearing the court doesn't know whether or not the allegations are true.

On-notice applications

If the judge doesn't make the order without notice, it is likely because the evidence is not clear enough, or you're currently safe, or it could be that the allegations are not serious enough. Or, it could be because you haven't asked for that.

The judge will instead arrange for there to be a court hearing within 21 days. Both you and the respondent will need to attend. This is how most cases happen.

If you did ask for the order to be made without notice and the judge has refused, and you can't wait up to 21 days for that, then you can ask for a without notice hearing for reconsideration. You must request this within 2 working days and it should be heard within 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. 

Your application should cover:

• How you and the respondent are associated persons ie the nature of your relationship

• The history of your relationship and any children

• What the respondent has done that has caused you harm. Name specific incidents with dates. If your application is based on a pattern of behaviour, cover that too. Be as precise as you can.

• What effect the respondent's behaviour has had on you and any children

• What you are asking the court to do and why

• What evidence you have in support

If you are asking for the order to be made without notice, your statement needs to cover the following additional points:

• why the application is so urgent that you want it dealt with in this way, without the respondent knowing about it first

• what you're worried might happen if the order is not in force before the respondent knows about it

Remember that this is an emergency form of 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 but they may be slower than a private process server. A private process server will charge you. 

The order protects you as soon as the respondent knows about it.  

You will need to give the respondent:

• the application form,

• the witness statement,

• the order and any notice of hearing if separate

• If the order was made by the magistrates (lay justices) you should also provide their statement of reasons.

• You can also send them a blank form FL435 - Response to a non-molestation order

Once these have been served on the respondent you need to file Form FL415 which is your Statement of Service - a short form showing when and how you served the documents. Send this to court at least 2 days before the hearing.

Then you also need to serve a copy of the order and Statement of Service on the police, which you can do through the post. This notifies the police that they can arrest the respondent for any breaches.

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.

You and the court will know from the respondent's form FL435 whether they agree to an order, agree to an order without admitting their past behaviour, or want to fight the allegations. If they want to fight the allegations then there will be yet another hearing after this return date. The respondent will have the chance to write their own witness statement and get their own evidence together. You and the respondent will have to come back to give evidence and the court will decide whether to make the order for a longer period, usually about a year. 

There's an animated video showing a return date hearing on the Courtney website here.

However, it is quite common to reach agreement at this first return date about what happens, and we discuss this below.

If you are worried about seeing your abuser at court, then ask for special measures.

After the return date you will need to arrange service again, of any non-molestation order made at the return date.

Options for resolving things

The respondent might admit the allegations and agree to an order.

The respondent might fight the allegations in which case there will have to be a full hearing where you and they give evidence.

There are also two compromises that are possible.

1. They might agree to an order without accepting your allegations are true. If they agree to the order, the judge won't need to hear your evidence. The judge will make an order and they can be arrested by the police if they breach it. The respondent might agree to this because it means the court doesn't have to find whether or not they are abusive. They therefore don't risk being labelled an abuser by a court.

2. A further option is for the respondent to give an undertaking to not to harass you and/or not to contact you at all. An undertaking is a solemn promise to the court that is put in writing. This is obviously to their advantage, because they won't want a judge to issue a judgment that says they are an abuser.  But from your point of view the police cannot arrest someone for breaching an undertaking. This means if they breach the terms of the undertaking you then you will need to return to court and ask the court to hold them in contempt of court, which can result in them being fined or sent to prison.

   You may or may not agree to an undertaking. 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, as long as you haven’t given an undertaking about domestic abuse yourself.  (Sometimes your ex's lawyer might argue that you're both abusive to one another so you should give an undertaking too.  Be aware that if you give an undertaking you won't be able to get legal aid.)

   The court is not allowed to accept an undertaking if there has been physical violence and the judge thinks that only an order will protect you.

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. It doesn't mean that the court believes the allegations. The court has not decided the truth yet.

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.

Your options are:

1. To agree to an order being made because you agree the allegations are true.

2. To agree to an order being made but you're not agreeing that you have molested them. The court will make the order but without the judge deciding whether or not you have molested them. You can be arrested if you breach the order.

3. To fight the allegations. The court will hold a further hearing and hear evidence from both of you before deciding whether the allegations are true or not.

4. Agree to give an undertaking. An undertaking is (a solemn promise) not to harass someone (or perhaps not to communicate with them at all). It does not mean that you accept that you behaved in a way that was molestation. You're just promising not to do it in the future. An undertaking is written and signed by you before the judge. You can't be forced to give an undertaking but if you give one then it's just as strong as a court order – a breach could result in a fine or going to prison. Courts must not accept undertakings instead of making a non-molestation order if you have 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. That's because you can't be arrested for breach of an undertaking. If the applicant wants to be able to have you arrested, then they might agree to option 2 but not this option.

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. If the applicant is in a refuge, then special rules apply to service - seek legal advice in this situation.

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 chosen number 3, the court will set deadlines for the evidence and arrange a longer hearing to get your evidence. You will need to write a witness statement in response. Get together any evidence that contradicts what the applicant says.