Bella Tait
Non-molestation order [‘NMO’] hearings are generally short (often only listed for 30 minutes), so, I will endeavour to do the same with this article.
Earlier this year, the case of DS v AC [2023] EWFC 46 was the first widely published case on NMOs in some time and it was followed by guidance on NMOs from the President in July 2023. Both these documents highlighted some of the big issues with the way the system had been working, primarily with without notice (‘ex parte’, if you’re feeling particularly Latin today) orders.
Key take aways:
- Without notice NMO should only be granted in exceptional circumstances, considering all the circumstances including:
- Risk of significant harm.
- The applicant will likely be deterred or prevented from pursuing the application if not made immediately.
- There is reason to believe the respondent is deliberately evading service and delay will be seriously prejudicial.
Per Peter Jackson J, in R v R [2014] EWFC 48, para 2:
The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing.
- If you want a without notice order, the exceptionality of the case must be explained clearly within the application and statement in support.
- There does not have to be an intent to ‘molest’. However, it is not wholly a subjective test where the applicant merely has to feel distress but rather the court should take a holistic view of the evidence and allegations made as well as how the individual views the incidences.
Following this, the new world of NMO should be looking quite different and I think in many court centres this precedent has sunk in but in others, not so much.
The issue, as always with family law, is striking the right balance, as I have heard of cases which included allegations of serious and recent violence being denied without notice orders and, just today, I am preparing to argue that a without notice NMO (without any alleged incident for the previous 8 months) should not have been made.
To sum up, know the new guidance on without notice orders and be prepared for push back if you are asking for one.
GOOD PRACTICE NOTE – the July 2023 guidance from the President makes clear that when there are domestic abuse allegations within NMO proceedings and concurrently running Children Act proceedings, the court should consider consolidation at an early stage to avoid duplication. I could not agree more.
This article is written by Bella Tait, Consultant Barrister at Unit Chambers.
Law is correct as of 28th November 2023. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.