Criteria for making
A non-molestation order is a form of injunction which protects people from violence or harassment and can be obtained against someone who has been physically violent or has harassed, intimidated or pestered the victim.
There has been no published High Court judgment on applications for non-molestation orders for some years, that is until judgment in the case of DS v AC was handed down in March 2023.
In this High Court case Mrs Justice Lieven DBE said that she felt it would be helpful to set out the basic principles that apply to such applications and orders. The judge said 'I do this in part because there has been a significant growth in the number of such applications during the Pandemic, and in many parts of the country that increased number has not fallen back to pre-Pandemic levels. A large proportion of the applications are made without notice (ex parte) and it may be useful for practitioners to be reminded of the very strict criteria for the making of such orders ex parte.'
The judge recounted in her judgment that: 'the Applicant and the Respondent started a relationship in October 2021 and the relationship ended by WhatsApp message on 16 September 2022. The parties had a professional relationship through a networking group. She recounts that the relationship became problematic and there were a number of arguments, but she expressly says that the Respondent was not verbally (or physically) abusive to her. She felt that he was controlling towards her, frequently phoning and monitoring where she was. He became increasingly demanding of her in terms of answering his calls and being available. She also says that the Respondent was controlling of her by buying her extravagant presents and then accusing her of being ungrateful. ... I recount these details because it can be seen that this is a fairly typical account of a failing relationship, and much of the Applicant’s account is open to different perceptions of what was happening between the parties.'
Mrs Justice Lieven DBE summarised that 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 ;
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 ;
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 .