Non-Molestation Orders

This button will appear throughout this page – Should you feel like you need to quickly leave this site, clicking this button will take you to a blank google search page.

---

Non-molestation orders (NMO) are a vital tool that the courts have in order to protect victims of domestic abuse. These orders are designed to prevent increasing or further abuse from a perpetrator by prohibiting certain acts and behaviours.

Due to the ever chronic situation being faced by victims of domestic and sexual abuse in the criminal courts, with only 33% of domestic abuse related crimes resulting in arrests and less than 6.5% of cases resulting in a charging decision by the CPS, the civil redress offered by NMOs is the only lifeline that many individuals have.

Unfortunately, with the cuts to legal aid being ever present, accessing this lifeline is out of reach for many. Currently, legal aid is only available for NMOs where your household income is less than £32,000 per year which, on initial glance, may seem a significant amount, considering the cost of living, dependants, and just how quickly legal costs can add up, the amount is dangerously low considering what is at stake. You can check if you are eligible for legal aid here.

This article aims to help navigate the legal position of non-molestation orders and offer practical information and guidance on the procedure that may be involved. Whilst this article is not legal advice, it should provide an advanced springboard to understand this often-complicated area for those without any legal training or experience.

What is a Non-Molestation Order?

Section 42 of the Family Law Act 1996 introduced non-molestation orders as a civil remedy for those facing domestic abuse. An NMO is an order of the court that prohibits the respondent to the claim (the person you take to court) from doing certain things.

Section 42(6) and 42(7) state that, an NMO may be in terms that restrict molestation in general and broad terms, restrict molestation in relation to specific acts, or restrict it in relation to both. Additionally, these orders can be made for a set period or can be made indefinitely (though the respondent has a right to apply for the order to be discharged).

The aim of these orders is to protect the applicant from the behaviour of the respondent, most often this is to prevent further abuse that has been suffered, though this is not limited to physical abuse and can, and does, include sexual, emotional, psychological, financial abuse and any other forms of behaviour which constitute molestation.

In the simplest terms, a non-molestation order is better understood as a restraining order. It is a legally binding court order that tells a person they must not do a certain thing, such as cause alarm to a person, not go to a persons house, or refrain from contacting somebody. Failure to abide by such an order could result in further, more serious sanction, including imprisonment.

Who can Apply for a Non-Molestation Order?

Molestation is not defined in the Act, nor have the courts given a precise definition to this word. Whilst this may seem to complicate matters, this is for the benefit of those applying for such an order, were the courts to place a strict definition on the word, it could unjustly prevent certain acts being covered. Whilst no strict definition has been given, the courts have given some useful and general guidance.

In Vaughan v Vaughan [1973], Stephenson LJ stated:

In Horner v Horner [1983], the Court of Appeal held that molesting:

In C v C [2001], the then Lady Justice Hale (former president of the Supreme Court) noted that an NMO would be granted where the molestation:

Two more recent statutes can also provide guidance of behaviour which may (and is likely) to amount to molestation within the meaning of s.42, these are the Serious Crime Act 2015 and the Domestic Abuse Act 2021.

s.76 of the Serious Crime Act 2015 created the offence of controlling or coercive behaviour in an intimate family relationship, it defined this as:

s.1 of the Domestic Abuse Act 2021 defined domestic abuse as:

The acts and behaviours defined within these acts are, at most, black and white examples of molestation, at least, very persuasive of molestation. It is almost inevitable that any behaviour defined in the Domestic Abuse Act 2021 automatically qualifies a person for an NMO.

As to who can apply for these orders, s.42(2) of the Family Law Act states that:

In more simple terms, the people covered under s.42(2) are:

• Most family members
• Anybody you are in a relationship with
• Anybody you have been in a relationship with
• Somebody you live with
• Somebody you have lived with
• Adoptive parents of your child
• Prospective adoptive parents of your child

s.42(2)(b) is somewhat broader and can include anybody connected with the proceedings or any child in a case, in the case of Re T (A Child) [2017], the court granted an NMO for the benefit of a carer.

A very important note, and one that might be especially relevant if you have found yourself on this article. You do NOT require the assistance of a solicitor or a barrister to apply for a Non-Molestation Order. This is an order of the court that you can apply for and progress as a lay person.

How to Apply for a Non-Molestation Order?

Applying for an NMO is not entirely simple, as with any legal procedure it is likely to feel somewhat overwhelming and slightly confusing. However, the court forms and guidance are more simple than most, especially if you have a general understanding of what an NMO is and your eligibility for them (as above).

To apply, you can use the RCJ CAB CourtNav service to prepare the application online. Alternatively, you can manually complete the application forms either electronically or on paper. The following advice is based on the manual applications.

The following forms/documents will definitely or very likely be needed:

• FL401 (Non-Molestation Order Form)
• C8 (Application to Keep Details Confidential)
• D89 (Request for Service of Application/Order)
• FL401T or A witness statement

The following forms/documents may be needed:

• FL403 (Change an existing Non-Molestation Order)
• EX740 (Application by Person Making an Abuse Accusation to Prevent Cross Examination by the Respondent)

FL401 – Application for a Non-Molestation Order

This is the main form that you must file with the court to apply for an NMO and it is split into nine sections as follows.

Section 1 – Your situation
This section deals with the order you are applying for and whether you are applying without notice. Applying without notice, sometimes known as an ex parte (literally meaning, “without person”) application, means that your case will be heard without the respondent being notified or being present. Such an application can only be made if (a) there is a risk of harm to you or your child; (b) you may be put off from making the order if it is not made immediately; or, (c) the respondent may try to avoid the proceedings and this delay will cause harm to your health, safety or wellbeing. If an ex parte application is made, the respondent will eventually be told and be given a chance to present their case.

If you choose to make an ex parte application, you will be required to explain this and will need to complete form D89 (see below).

In this section, you will also be required to explain any bail conditions that the respondent is subject to that may be relevant to the NMO such as no contact or an exclusion requirement.

Finally, you should alert the court to any special circumstances about your case, such as if there are any specific illnesses or disabilities suffered by you or your child, and access requirements, or matters such as pregnancy.

Section 2 – Your details
This is the section for you to fill out all of your personal details including:
– Name
– Date of Birth
– Address
– Phone Number
– Email Address
– Instructions as to safe times to contact you (such as when you will not be with the respondent)
– Information about any legal representative you have

In this section, you can tell the court whether you consent to your contact details being shared with the respondent. If you do not wish for this, for example, you are in a refuge, you will be required to complete form C8 (see below)

Outline the steps involved in applying for a non-molestation order, including how to fill out the necessary forms and how to file them with the court.

Section 3 – Respondent’s details
This is the section for you to fill out the personal details for the person you are seeking the NMO against.

This section requests the same details as in section 2, bar the legal representative. It is VITAL that you have an address for the respondent, this does not have to be their personal address if you genuinely do not know this, it can be that of a workplace or a family member. Without any such address, you will be unable to apply for an NMO.

Section 4 – Your relationship with the respondent
This section asks for details about the relationship you have with the respondent, such as:
– Married/Civil Partner
– Formerly Married/Civil Partnership
– Engaged
– Cohabiting
– Boyfriend/Girlfriend
– Father
– Daughter
– Grandmother
– Nephew
– Etc.

Section 5 – Your family
This section requires you to fill out details of your children (if the NMO application will cover them also) and require you to inform the court of any ongoing proceedings in the family court involving you and the respondent (such as child contact arrangements).

Section 6 – Respondent’s behaviour
This is the section where you inform the court exactly what molestation the respondent is engaged in. The selection boxes in this part of the application are exhaustive, however, there is a free box at 6.4 where you can enter custom things. The main forms of molestation you can inform the court of are:
– Being violent or threatening towards you
– Harassing or intimidating you
– Posting information about you (in print or digitally)
– Contacting you
– Damaging your possessions
– Entering your home
– Coming near your home
– Coming near your workplace
These acts also apply to your child

Section 7 – The home
This section is only relevant if you are applying for an occupation order in addition to an NMO (or on its own). This is not the subject of this article and so will not be covered as an occupation order requires different tests and thresholds than that of an NMO.

Section 8 – Going to court
This section allows you to inform the court whether there are any matters that may impact your ability to attend court or engage in the court process. This includes:
– Advising the court that you require an interpreter
– If you require any reasonable adjustments
– Any special measures you require (such as a private entrance to the court or privacy screens)

Section 9 – Statement of truth
This section is a simple declaration that you confirm the contents of the application are true and that you may be held in contempt of court if you knowingly submit a false application.

C8 – Application to Keep Details Confidential

If you do NOT want the respondent to know your contact details or those of your children, for example, these need to be kept secret to keep you safe or prevent further molestation, you must completed this form. This form must be completed and filed WITH your FL401.

The form is very simple. You should complete as much of the form as possible (though you may not at this stage have some details such as a case number). You must specify the details which you do not wish to be shared, for example:

– Phone Number
– Email Address
– Postal Address
– Children’s School

The court will keep copies of these details and these may also be passed to CAFCASS, however, the respondent will not be passed these details.

Like the FL401 and most court forms, this also requires a statement of truth.

D89 – Application for Service by Bailiff

This form MUST be completed if you do not have any legal representative helping you with your case. In all court proceedings, the respondent must be ‘served’ with any application or order made against them. This is so they have the opportunity to present their case or be notified of any interim orders made against them.

In proceedings for certain orders, including NMOs, you, as the applicant, CANNOT serve any documents on the respondent yourself. Usually, your legal representative would do this for you, however, if you are not eligible for legal aid and are unrepresented, you must complete form D89. This form makes it so that your application notice, or interim order, will be served on the respondent by a court bailiff.

This form requires many of the respondents details from section 3 in the FL401, but this also requires you to provide the court with a physical description of the person and/or a recent photograph of them. Further, details of any vehicle they drive.

For the safety of any bailiff tasked with service of these documents, you must also alert the court to the following:
– If the respondent has ever been violent
– If the respondent has ever made threats
– If the respondent has ever had police involvement
– If the respondent has ever had social services involvement
– If the respondent keeps any dogs or dangerous animals
– If the respondent suffers from any mental health issues or abuses drugs/alcohol
– If the respondent holds a firearms certificate or has firearms convictions

If you answer yes to any of these, you must provide details.

FL401T – Supporting Statement (or Witness Statement)

You MUST file a witness statement with your application. A witness statement is where you go into detail about the issues you have faced. Form FL401T is a template witness statement that you can fill in and follows a similar layout to the FL401, you are not required to complete this specific form, however, a statement containing the salient details must be provided.

The FL401T is advisable for those without legal representation and without experience of producing court documents. This is because a witness statement without a template can very easily miss important details and include too many irrelevant matters.

The FL401T allows you to provide information in the following categories:
1. An introduction
2. History of your relationship with the respondent
3. The most recent incident of molestation
4. The first incident of molestation
5. The worst incident of molestation
6. Any patterns in the abuse or other such incidents
7. A summary

It is extremely important that you are as detailed as possible with such a statement, including exact dates and times of any contact or incident and how they occurred or came about.

In the FL401T (or any witness statement) you can also include any exhibits. An exhibit is simply a piece of tangible evidence that you have to support any claims, this can include things such as medical reports, text messages, and reports from third parties such as social services.

If you submit any exhibits (and it is really important that you do if there is any evidence corroborating your account) you must attach a coversheet for EACH exhibit. The template coversheet is the last page on the FL401T form, you need to complete one of these for every exhibit that you have. For example, a medical report would be one exhibit, text messages from date x would be another exhibit, a report from the police would be another exhibit etc. You do not need to complete a separate coversheet for every single page if these form part of the same exhibit, such as 12 pages of text messages that are all from the same conversation/date/incident, these would all simply be in the same exhibit (but you may wish to paginate each page for the assistance of the court e.g. page 7 of exhibit 3).

If you do not wish to use the FL401T, your witness statement should be completed as close as possible to a formal statement (see here) and should follow either a chronological or issue based structure. A chronological structure is simply each day to the next, an issue based structure would be specific sections for each issue, regardless of the dates of these issues.

A chronological structure is best suited to consistent molestation (such as harassment), an issue structure is best suited where there are multiple types of abuse, such as sexual, financial and coercive behaviour. Regardless, the statement should be headed and sub-headed by date or issue.

The statement should also be numbered, rather than large blocks of text. This is to enable you to direct the court to specific parts of the statement or for the judge to make note of specific paragraph numbers.

FL403 – Application to Change an NMO

If you have already been through the process of securing an NMO, you may wish to change this in some way, such as:
– Vary the order (to include new restrictions or lower existing restrictions)
– Extend the order (to increase the time it is valid)
– Discharge the order (to remove it entirely)

If you do wish to make such a change, you MUST apply to the court and complete the FL403. You cannot simply consent to the change with the respondent, the court must authorise the change. This means that, if, following the grant of an NMO, you reconcile with the respondent and wish to have contact with them again, you cannot simply restart this contact – This may put the respondent in breach of the order regardless of your consent. The court must authorise this change.

You must give brief reasons to the court why you are applying for the change requested, though any review will have sight of your original order/application, and so this does not need to be as detailed as the original applications.

EX740 – Application to Prevent Cross Examination

Should the court order an oral hearing in relation to the NMO, that being a hearing where you and the respondent are expected to give evidence to the court and call witnesses or question the other side, it may be that the molestation is such that it constitutes domestic abuse or such serious action that to allow the respondent to question you in court (which would otherwise be their right in such a case) would be perverse.

The EX740 allows you to apply to the court for an order that the respondent be prohibited from personally conducting the questioning of you in court. Should an oral hearing be required, the court will inform you of this and will likely send you a EX740 form in anticipation.

You will need to provide supporting evidence for this.

Even if your application is successful, this does not mean you will not face any questioning in such a case, simply that the respondent themselves will not conduct the questioning. If such an order is granted, the court will likely appoint a legal representative to conduct the questioning of you on behalf of the respondent.

After you submit your application/s, the court will receive these and list a hearing. Depending on whether this is an ex parte application, the respondent might be notified of this initial hearing.

A VERY important point to make here is that applying for an NMO is FREE! There are no court charges for sending the application or for the hearing itself. An NMO application will only incur charges if you are not eligible for legal aid and privately engage a solicitor and/or barrister.

If you are not legally represented, you may have a right to a McKenzie Friend. A MK is somebody who you can bring to the proceedings to:

1. Provide moral support
2. Take notes
3. Help with papers
4. Give quiet advice

A MK can NOT litigate for you, manage your case, or address the court. If you wish to bring a MK, you should make the court aware of this as soon as possible, for example, in section 1 or 8 of the FL401. NMO cases are considered private law matters, as such, the right to a MK is somewhat more limited, you are required to justify their presence to the court (however, as an applicant without any legal representation, this burden is not hard to meet), there is a strong presumption that you should be allowed assistance from a MK regardless of the matter. See Practice Guidance McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962 for full guidance.

What Happens at the Hearing?

If you make an ex parte application, the hearing will be listed without notification to the respondent, this means that you would be the only person speaking to the judge and explaining your case and requesting the NMO. This may sound easier, however, due to this being a hearing where the other party is not present or represented, the court is likely to expect a higher standard from you in terms of evidence. Further, you are under a duty to present the court with all the evidence and matters, even those which are negative to your case. For example, if you have also previously engaged in domestic abuse, have serious mental health difficulties, or have relevant convictions, you are required to bring these to the attention of the court.

Failure to present the full case in an ex parte hearing, even where this is negative to your case, will likely go against you in the long run and when the respondent is given the chance to challenge the order, they will likely raise these issues and the judge is unlikely to look on this sympathetically.

If an ex parte order is made, this will be served on the respondent so they know there is a court order preventing them from doing certain actions. A further hearing will be listed, with the NMO in place to protect you at this stage, so that the respondent can give their side (as in the full hearing case below). This hearing will be listed as soon as reasonably possible.

In a regular hearing, the respondent will be notified of the hearing and will likely attend (if they do not, the hearing is likely to continue without them unless there is a good reason provided for their failure to attend, such as a medical emergency). At the hearing, the judge in the case will review all the forms and documents that have been submitted. If there is a contested application i.e. the respondent disputes the molestation alleged, the respondent will likely be able to cross-examine you (and you them) and call witnesses and present further evidence.

It is a vital feature of the British courts, that anybody accused of something is allowed to defend themselves to the fullest. You may have incontestable evidence and you may have suffered horrific abuse, however, the respondent will still be allowed to present their case. This will, at times, likely be very emotional and they may make serious allegations and claims against you in response. As a result, whilst it is accepted that it is not always possible, legal representation at such a contested hearing will help.

At the end of the hearing the judge can make several orders, including (in increasing ‘severity’):

• Dismissing the application entirely.
• Adjourn the hearing (this is likely if serious and disputed allegations are put on a party without any notice to allow that party time to gather evidence).
• Refuse an NMO, but order the respondent to make an ‘undertaking’, this is a promise to the court not to do something.
• Grant an interim NMO and order a follow-up hearing.
• Grant a final NMO but not in the full terms requested (for example, you may have asked for the NMO to prevent the respondent coming near your work, home, and any route between these two between certain hours, the judge may choose only to make the order preventing the respondent coming near your work and home only, but not the journey).
• Grant a final NMO in its full terms as requested.

Whether an NMO is granted, and the type, will depend on what the judge concludes has happened and what may happen if the order is not granted. In civil cases, this is decided on the balance of probabilities, in simple terms, the judge must be more sure than not that something did or will happen. If the evidence suggests that there is a 51% chance that something happened, the judge will rule that it 100% did happen. If the evidence suggests that there is a 49% chance that something happened, the judge will rule that it 100% did NOT happen. This is why it is so important for you to present evidence.

An NMO will usually be for a defined period, usually this is between 6 and 12 months, but the court has a very high level of discretion and so the order could be less or much longer. With the ability to apply to extend any orders, providing the risk of molestation continues, an NMO can last a lifetime.

At the hearing, you should refer to the judge either as:

• “Judge” (if they are a District Judge)
• “Your Honour” (if they are a Circuit Judge, noted by the HHJ before their name)

Breach of a Non-Molestation Order

Section 42A of the Family Law Act 1996 provides that:

A breach of an NMO would also constitute a civil contempt of court, whilst this is not a criminal offence, it can still be punished by a fine or a maximum of 2 years in prison.

The consequence of a breach depends on the route to respond to the breach. You can either report the matter to the police, who have the powers under s.42A above, or, you can initiate further proceedings in the court that issued the NMO (this is a more niche area and will not be covered here, it is advised that you contact the police in such a circumstance, however, if you do wish to enforce this via the civil route, you should contact a specialist legal advisor or domestic abuse support agency).

Breach of an NMO, whether civil or criminal, is a very serious matter and can result in imprisonment in either case. Further, in the event of a breach, the court is very likely to consider granting further restrictions or extending any order that is in place.

In considering a criminal breach of an NMO, the Crown Prosecution Service (and by virtue the police), will consider two things imposed by the sentencing guidelines. Firstly, the culpability of the respondent in committing the breach i.e. how deliberate and persistent they are in the breach, there are three categories:

1. (a) Very serious and/or persistent breach
2. (b) Deliberate breach falling between (a) and (c)
3. (c) Minor breach or a breach short of reasonable excuse

Secondly, the harm caused as a result of the breach i.e. the impact the breach has on you in terms of harm or distress, there are three categories:

1. Very serious harm or distress
2. Harm falling between 1 and 3
3. Little to no harm or distress

Depending on the combination of a-c and 1-3, the range of sentence can be anywhere from a Band B fine (equivalent to 1 weeks’ worth of income) to four years custody. Whilst the maximum sentence is five years, this is the absolute maximum and is reserved for the most severe breaches.

The higher range of imprisonable sentences are less likely as any breach falling into these categories likely constitutes a separate and more serious offence, such as harassment or an offence against the person.

In any event, should the respondent breach, or the threat of breach be significant, you should contact the police immediately advising them that there is a court order in place and that the respondent has breached this. Even where action falls short of a breach, the police may be able to implement some support such as applying a Location of Interest Marker on your address.

Conclusion

Non-Molestation Orders are vital civil remedies to domestic abuse, coercive control, continued inappropriate pestering and harassment, and overall harmful actions. Whilst the procedure is not necessarily simple, it can be navigated by those without any legal experience or training and without the assistance of a lawyer. Whilst it is always better to have such assistance, this is, of course, not always possible.

NMO’s are a vital protection for victims of domestic abuse, particularly when criminal remedies fall short or fail entirely.

Support Services

There are numerous specialist support services, charities and agencies who can advise you and support you with matters concerning domestic abuse and the court process.

---