Non-molestation orders - the law

Section 42 (1) of the Family Law Act 1996 reads:

42 Non-molestation orders

(1) In this Part a “non-molestation order” means an order containing either or both of the following provisions –

(a)     provision prohibiting a person (“the respondent”) from molesting another person who is associated with the respondent;

(b)     provision prohibiting the respondent from molesting a relevant child.

(2)The court may make a non-molestation order—

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.

The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order on an ex-parte basis.

In C v C [2001] EWCA Civ 1625 at [23], Hale LJ, as she then was, stated that the criterion of non-molestation is 'conduct engaged in order to cause alarm or distress' which must 'call for the intervention of the court'.

Key guidance in relation to applications for occupation and non-molestation orders was given in DS v AC [2023] EWFC 46. Paragraph 23 reads:

The following principles can be extracted from the FLA and the caselaw:

a. On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a);

b. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);

c. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at [1];

d. The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at [1];

e. "molestation" does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court, Horner v Horner at 51G;

f. The primary focus of the court should be upon the "harassment" or "alarm and distress" caused to those on the receiving end, Re T (A Child);

g. There does not have to be a positive intent to molest, Re T at [42].

Zubair Mughal is a specialist family law barrister. He accepts instructions from solicitors and from members of the public under the direct access scheme.