One of the fundamental questions when applying for a Non-Molestation Order (NMO) will always inevitably be whether the order will be granted on a without notice basis. In simple terms, “Will the order be put in place to protect me before my ex-partner knows that I am making this application?” Whilst never guaranteed, the answer in most cases used to be “yes”, as historically there appeared to be a wide and generous interpretation of the legal test. However, there seems to have been a recent shift in judicial approach and following the case of DS v AC [2023] EWFC 46, it is clear that without notice orders will only be granted in exceptional circumstances.
In this case Mrs Justice Lieven gave a helpful and comprehensive summary of the law, particularly relating to orders that are sought on a without notice basis. She firstly outlines that the power to grant a NMO is set out in s42 of the Family Law Act 1996 (FLA), and that the court must have regard to all the circumstances when deciding whether to grant an order. This includes the need to secure the health, safety and well-being of the applicant and any relevant child under s42(5).
She then goes on to outline the test for making without notice orders at s45 of FLA:
- The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.
- In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—
(a) 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;
(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c) 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.
We are reminded that there is no statutory definition of molestation, but the following principles are made out in the case law:
“[A]ny conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.” (Horner v Horner [1983] 4 FLR 50)
The granting of a Non-Molestation Order was justified where the conduct completed of “was calculated to cause alarm and distress to the mother”. (C v C [2001] EWCA Civ 1625)
The Judge further refers to the comments of McFarlane LJ in Re T (A child) [2017] EWCA Civ 1889 who said:
“When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the ‘harassment’ or ‘alarm and distress’ caused to those on the receiving end. It must be conduct of ‘such a degree of harassment as to call for the intervention of the court’ (Horner v Horner and C v B ). Although in C v C the phrase ‘was calculated to cause alarm and distress’ was used, none of the authorities require that a positive intent to molest must be established”
The Judge then goes on to highlight the observations of Peter Jackson J in R v R [2014] EWFC 48 when considering without notice applications:
- The default position of a judge faced with a without notice application should always be “Why?” , not “Why not?” As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.
- The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.
At paragraph 23 in DS v AC, Lieven J draws together and outlines the legal principles as follows:
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;
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;
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;
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 paragraph 24, the Judge reminds us that these principles need to be applied properly, and orders not simply granted by default. She further highlighted that when without notice applications are made, the statement in support must deal with why the case is exceptional and what the significant risk alleged is.
So what are the practical implications following this case? It appears that the court are becoming much stricter when applying the test for without notice applications and it is becoming more difficult to obtain an order on a without notice basis. When seeking an order, the person drafting the application and accompanying statement will need to set out clear and compelling reasons to show that the order is needed on an urgent basis and that there are exceptional circumstances in the case. A helpful starting point and guide is the law as outlined at paragraph 23 of the judgment as set out above.
Author: Lydia Bonnefoy-Jenkinson
Lydia Bonnefoy-Jenkinson can be instructed by emailing her clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
For the full judgment please see the following link:
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWFC/HCJ/2023/46.html&query=(EWFC)+AND+(46)
C v C [2001] EWCA Civ 1625
DS v AC [2023] EWFC 46
Horner v Horner [1983] 4 FLR 50
R v R [2014] EWFC 48
Re T (A Child) [2017] EWCA Civ 1889