Can Non-Molestation Orders be appealed against?
Section 42 of the Family Law Act 1996 allows the court to make a Non-Molestation Order to provide protection to victims of domestic abuse. It is there to make sure a perpetrator does not harass, intimidate, or cause any sort of harm to the victim by prohibiting them from approaching the victim either directly or indirectly. A Non-Molestation Order can be made ex-parte (without notice) for roughly a maximum period of 14 days before a hearing is scheduled to allow the perpetrator to defend his case. At this hearing, the Non-Molestation Order is then either extended for a period of some months or in rare cases a little longer. The order is primarily there to allow the victim to escape the abuser but is not typically used as a long-term solution. In short, a Non-Molestation Order can be appealed.
How do you appeal a Non-Molestation Order?
Manjra v Shaikh [2020] EWHC 1805 (Fam) was a case which reached the High Court of Appeal as the Non-Molestation Order which was originally granted to the victim did not have an end date. A highly unusual case, the judge who drafted the original Non Molestation Order did not put an expiry date on the Non-Molestation Order, meaning that it continued long after the wife and husband had divorced.
The original case was heard in November 2016, at which point the Non-Molestation Order was granted to provide protection to the wife. In January 2020, the husband attended another hearing to ask for the Non- Molestation Order to be discharged. As it had been 3 years since the original order had been made, and there had been no further incidents since, the husband argued there was no need for the order to still be active.
The wife defended the need of the Non-Molestation Order stating that it was doing its job by providing a warning to the husband not to cause her any harm. She argued that protection did not have a time limit.
What did the judge say?
The judge ruled that it was against the standard good practice for the original judge to have made an order without any time restrictions. The judge reported that a Non-Molestation Order typically lasts for a maximum of 12 months and if there has been any trouble then it can be extended. The judge also said that as there had been no recent incidents, she could not under any legal rule make a Non Molestation Order at this time. However, she concluded that as there was no harm coming to either party, ‘It does not seem to me any good reason now … to change it.” The judge then ordered for the Non-Molestation Order to continue indefinitely.
Can a Non-Molestation Order last forever?
Not quite. In May 2020, the husband was granted a right to appeal. In the appeal case, it was concluded that the judge who continued the order indefinitely had perpetuated the failure of good standard practice by first recognising that the original Non-Molestation Order should not have been made without an end date but then did the exact same thing by ordering that the Non-Molestation Order to continue indefinitely.
This did not make sense to the appeal judge. The judge ruled that for the Non-Molestation Order to continue, the wife could raise recent allegations at another hearing and the husband could have the right to challenge them. If the burden of proof was met, then the Non-Molestation Order could be extended but not indefinitely as it was previously ruled. The appeal judge made the continuation of the order until ‘further order’.
What is so special about this case?
The main points about this case are that it is important to note there has to be a time limit for a Non-Molestation Order. The court recognises that victims of domestic abuse need protection, however, it is not legally feasible for an order to continue forever, especially when there have been no further incidents. This case is of huge importance as it shows that for a Non Molestation Order to be granted, there has to have been recent incidents of abuse and that all Non-Molestation Order’s can be extended but not without good reason. All Non-Molestation order’s should also have a time limit as these orders do have powers of arrest attached to them. Therefore, having an ambiguous timeline for an order so important, it carries up to a 5-year prison term if breached, should not be made common.
Its crucial to note though, that the appeal judge did not say that a Non-Molestation Order could not continue forever. The emphasis was more on the fact that a few years had passed since the last incident of recorded abuse and that it was unfair for the order to continue without at least allowing the husband to provide his defence. It was made clear that an order should only be granted or extended if there is a need which in this case, it was concluded there was no need.
Please do note that this Article is NOT Legal advice and should not be treated as legal advice.