The judiciary issued formal guidance on non-molestation orders because too many were being granted without the proper test being applied

A non-molestation order is made under Part 4 of the Family Law Act 1996. It prohibits one person from molesting another, which in practice covers contacting them, going near their home, and often any communication about the children except through a solicitor. Breaching one is a criminal offence carrying up to five years in prison.

It can be granted without notice, meaning the court hears only from the applicant and the respondent learns of the order when he is served with it. For a man living in the family home with his children, a without-notice order can end both arrangements on the afternoon it is made.

The test that is supposed to apply

Without-notice orders are not intended to be routine. The Family Procedure Rules require the court to consider all the circumstances, including the risk of significant harm if the order is not made immediately, whether the applicant would be deterred or prevented from pursuing the application, and whether the respondent is deliberately evading service.

That is a demanding test, and it exists because the order is being made against somebody who has not been heard.

What the judiciary said in 2023

In July 2023 the President of the Family Division published Practice Guidance on non-molestation injunctions. The guidance was issued against a background the judiciary described plainly: applications under the Family Law Act had risen, the law on domestic abuse had developed, and the volume of applications was presenting a challenge to the limited resources of the court.

Practitioners had been making the same point in more detail. Writing for Field Court Chambers, counsel noted that without-notice non-molestation orders form an ever-increasing proportion of the workload of courts and lawyers, and that because such an order operates as a gateway to legal aid on domestic abuse grounds, applications are sometimes hurried through without proper thought as to the form the application should take or whether the stringent test for a without-notice order has actually been met.

That is detrimental to all users of the court system, including litigants who unfairly have an order made against them and victims of abuse for whom the court process is being used as a continuation of that abuse.

The legal aid gateway

This point deserves setting out clearly, because it is the part that is least understood outside the profession. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed most private family law from scope, evidence of domestic abuse is one of the routes back into legal aid funding. A non-molestation order is one form of that evidence.

Nobody is suggesting that is why most orders are sought. It does mean the system contains a structural incentive that sits uncomfortably alongside a test that is meant to be applied strictly, and it is one reason the judiciary has felt the need to intervene.

What this costs the people it gets wrong

An order made without notice is not a finding that anything happened. It is a holding position pending a return hearing. In the meantime the respondent may have left the family home, may be arrested if he approaches it, and will frequently find that contact with his children has stopped while the order is in force.

The return hearing is where the allegations are supposed to be examined. Given current listing times, the gap between the two can run to weeks or months, and by then a pattern of no contact has been established that the court will be reluctant to disturb quickly.

What to do if one is served on you

Do not breach it under any circumstances, including in response to being contacted first, because the criminal liability attaches to your conduct rather than hers. Get legal advice before the return hearing, since that is the hearing at which the allegations can be contested and an undertaking rather than a finding may be available. Keep every message and record in its original form rather than as screenshots you have cropped. And be aware that agreeing to an undertaking is not an admission, but it is also not a finding in your favour, so take advice on which you are being offered.

This is reporting on how the system operates and is not legal advice. Rights of Women, the ManKind Initiative and your local law centre can all point you towards proper representation.