Since 2009, the number of applications for a non-molestation order have steadily increased. In the period January to March 2019, the number of applications for non-molestation orders increased by 16% when compared with the same period in 2018.
The term non-molestation can be confusing. I have, more than once, when explaining an order to a client, been told “Oh it just means I can’t contact her, I thought she was saying I was a child molester.” In practice, non-molestation orders are used to protect a person from violence, harassment and threats and may simply be an order for there to be no contact, or may include a number of terms for that protection.
Who can make an application for a non-molestation order?
Non-molestation orders can only be applied for by a person against someone they are associated with, within the meaning of the Family Law Act 1996. This includes:
They are, were or intend to be married to each other
They are, were or intend to be civil partners to each other
They are or were cohabitants
They live or have lived in the same household in a familial relationship
They are relatives
They have or have had an intimate personal relationship of significant duration with each other
They are a parent of the same child or have or have had parental responsibility for that child.
(Section 62(3) and (4) of the Family Law Act 1996)
For persons that do not fall into the list above, a non-molestation order cannot be obtained.
How does the court decide whether to make a non-molestation order?
The court should have regard to all the circumstances of the case, including the need to secure the health, safety and well-being of the applicant and of any relevant child (section 42(5) of the Family Law Act 1996).
The following three principles should be considered by a court in deciding whether to grant a non-molestation order:
There must be evidence of molestation (C v C (Non-molestation order: jurisdiction)  1 FLR 554). This can include acts and threats of violence, abusive communication and harassment.
The applicant or relevant child must need protection.
The court must be satisfied that judicial intervention is necessary to control the respondent’s behaviour that is the subject of the complaint (C v C  EWCA Civ 1625).
What are the terms of a non-molestation order?
There is a standard template non molestation order, which is available to download from the Judiciary website.
The terms of the order should be drafted to appropriately fit the behaviour complained of and the circumstances of the case.
For example, in a case where the behaviour complained of is abusive text messages and the parties share a child, it may be appropriate to include the term “The respondent is forbidden to communicate or attempt to communicate with the applicant (whether by phone, text, e-mail, social media or otherwise) save for through her solicitors or for the purposes of child contact arrangements.”
Non-molestation orders may also include stay away or zonal orders, which are also sometimes referred to as exclusion zones. A zonal order typically prohibits a person from going to or entering a defined area. This could include a building, a road or larger geographical area.
How long do non-molestation orders last?
The duration is at the discretion of the court. A typical length of time is 12 months but orders may be made for a lesser or greater specified period. In some cases, courts may make an order until further order, meaning that the order remains in place until the court discharges the order.
What happens if someone breaches a non-molestation order?
Breach of a non-molestation order, without reasonable excuse, is a criminal offence (section 42A(1) of the Family Law Act 1996). The maximum sentence is 5 years custody. The sentencing council has published sentencing guidelines for the offence for use at criminal sentencing hearings.