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DS v AC [2023] EWFC 46 - A reminder of non-molestation orders

It is rather unusual to see a non-molestation order application appear before the High Court, as highlighted by Mrs Justice Lieven herself. Mrs Justice Lieven highlights ‘there is nothing unusual about this particular case’ [1]. However, she felt it was helpful to set out the basic principles relating to such applications and orders.

The facts of this case are not entirely relevant. The Applicant made an application for a Non-Molestation order on an ex-parte (without notice basis). This was refused by the District Judge and the matter was listed for an on-notice hearing. The Applicant did not attend the on-notice hearing and therefore, the application was dismissed. The Applicant subsequently emailed the Court explaining her non-attendance and the matter was listed for a directions hearing on 14 March to consider if the application should be reinstated. This is the hearing which then appeared before Mrs Justice Lieven.

Between paragraphs 17-22 of her Judgment, Mrs Justice Lieven outlined the law in relation to Non-Molestation Orders. From that, she then summarised the principles. These were as follows [23]:

  1. 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);
  2. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);
  3. 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 [1];
  4. 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 [1]
  5. "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;
  6. 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);
  7. There does not have to be a positive intent to molest, Re T at [42]

Mrs Justice Lieven stressed the need for these principles to be applied properly and not simply granted by default. She emphasised that ‘it is important for all concerned to note that a without notice application should only be made in exceptional circumstances where there is a risk of significant harm. If a without notice application is made, then the statement in support must expressly deal with why the case is exceptional and what the significant risk alleged is. There can be no doubt that far too many such applications are made where there is no reasonable basis to grant the application without notice’ [24].

Mrs Justice Lieven found that, in this case, the District Judge was correct not to make an ex-parte NMO. She also went on to consider that there was no proper basis for any order to be made in this case and she therefore refused to reinstate the application.

Whilst on the face of it, this appears to be a relatively simple matter, this case serves a sharp reminder to practitioners of the high test that needs to be met when considering non-molestation orders and in particular, those without notice. This is a judgment that should be considered by all practitioners, particularly those at the junior end who regularly are involved in such applications.

The link to the judgment is here:

https://www.bailii.org/ew/cases/EWFC/HCJ/2023/46.html