With the New Domestic Abuse Act on everyone’s lips, what is the test for a Non-Molestation Order? – Leila Taleb discusses

The enactment of the Domestic Abuse Act has put legal bells on an issue that has been on everyone’s lips for a while and has given rise to the acknowledgment of the complexities and vulnerabilities brought about by domestic abuse in the family law context. There is thus even more will for the application of orders for the protection of survivors of abuse, one example being non-molestation orders (NMOs).

Below, I define the legal test for NMOs including without notice NMOs, whilst analysing the potential implications and changing landscape that the Bill will bring with it in terms of interpretation of such orders.

Domestic abuse as its own ongoing pandemic

Domestic Abuse Bill

These have been three words that have echoed within the walls of Parliament chambers for long enough, and have reverberated within the ears of those who care about the implications of the Bill or those who work within sectors directly affected by such legislation: be it family law practitioners, government officials or voluntary sector workers (including refuge workers).

The Bill gained royal assent on 30th April 2021 and henceforth constitutes an Act of Parliament.

A few of the most poignant changes that the Bill brings include:

• Perpetrators no longer being able to cross-examine complainants of domestic abuse in family and civil courts;
• Recognition of children living within domestic abusive households as survivors of domestic abuse; and
• Better access to special measures for survivors of domestic abuse, such as protective screens and giving evidence via video link.

Some of these measures lay bare how the family legal system was lagging somewhat behind that of the criminal system in terms of the protection that should be afforded to the most vulnerable.

We have seen non-stop reports of how domestic abuse sky-rocketed in and amongst the revolving door of the Covid-19 lockdowns, which were sadly fatal for some women trapped within the confines of their home. [The term ‘women’ has been used within the context that the majority of domestic abuse is perpetrated against women but not to undermine the existence of such abuse against men].

The rise in reporting of domestic abuse has correlated with the rise of cases. This is not only down to the number of cases increasing but is also due to the increasing awareness campaigns around what constitutes domestic abuse; and the innovative reporting mechanisms now becoming open to some women.

Society and our legal framework have inevitably widened their interpretation of ‘domestic abuse’ in the last several years to reflect the reality that has plagued survivors. A reality that has seemingly gone under the radar due to the intangible nature associated with controlling and coercive behaviour and the ‘fog’ of confusion it can generate for those who have seen it as part of their lives for too long.

Non-molestation orders

The application of non-molestation orders (NMOs) have become more prevalent against the backdrop of a surge in domestic violence. The pandemic brought its own issues with the enforcement of such orders, including the varying definition of what constituted effective service when social distancing made personal service difficult.

The definition of what a NMO is contained within s42 of the Family Law Act 1996.

The Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004), which came into force in July 2007, expanded the definition of ‘associated persons’ within the meaning of a non-molestation order to mean any person associated with the respondent and criminalised NMOs in the event of a breach.

The term molesting is not defined within the Family Law Act but has been referred to in case law as harassment to a degree which could call for the intervention of the court (Horner v Horner (1983) 4 FLR 50 Ormerod LJ, at p 51G; Sir Stephen Brown, then President of the Family Division in C v C [1998] 1 FLR 554 at 556H.) or ‘calculated to cause alarm or distress to the mother’ (McFarlane LJ said in Re T (A Child) (Non-Molestation Order) [2017] EWCA Civ 1889, [2018] 1 FLR 1457 at [42]. Harassment is clearly a subjective term: something that seems like harassment to one person may not be deemed harassment to another person.

Judge’s have a wide discretion on whether ‘molestation’ is made out. It will therefore be interesting to see whether the increased prosecution of controlling and coercive behaviour, in addition to the expansion afforded by the Domestic Abuse Act, will impact how applicants will use the case law and/or how Judges will interpret such applications. For someone who is suffering from a long-standing pattern of controlling and coercive behaviour, an act by the respondent – which on the face of it may appear to be inconsequential – may in fact be very distressing and alarming for the applicant. This is where a proper understanding of this type of abuse is vital to determine whether a court should grant the Order, whilst maintaining the balancing scales of justice.

Without notice NMOs

A court may grant a non-molestation order under s 45 FLA 1996 without notice if it is just and convenient to do so. The court must take account of:

1. any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
2. whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
3. whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved in effecting substituted service.

If the court makes an order without notice it must afford the respondent an opportunity to make representations relating to the order as soon as is just and convenient at a full hearing.

As soon as is reasonably practicable, the applicant must serve on the respondent personally a copy of the order. However, the court may also serve the documents if ordered on its own initiative or upon application by the applicant.

As indicated in R v R (Family Court: Procedural Fairness) [2014] EWFC 48, [2015] 2 FLR 1005, Peter Jackson J said ‘The default position of a judge faced with a without notice application should always be “Why?”, not “Why not?”. Without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party’ and ‘The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing’.

The terms of NMOs should be precise and flexible enough to be enforced, particularly in light of the criminalisation of such orders if breached. It should be noted that a respondent can only be held guilty of

breaching a without notice non-molestation order in respect of conduct engaged when he is aware of the existence of said order.

The new Domestic Abuse Protection Notices (DAPNs) and Orders (DAPNOs) under the new Act aim to give survivors immediate protection and impose positive requirements on a respondent. They can be applied for in civil and criminal courts. Time will tell as to whether these orders under the new Act will become the new norm in and amongst a confusing abundance of orders currently available to applicants (across family and criminal courts), how such orders will interplay with existing ones and whether they will facilitate the streamlining of family and criminal courts in the pursuit of the protection of survivors of abuse.

Leila Taleb is a pupil in her second sixth who is now accepting instructions. If you would like to book Leila please contact her clerks:

Claudine Cooper on 0113 202 8604

Paul Foster on 0113 213 5209

Arnela Siranovic on 0113 213 5212