Updated: May 4
The Misuse of Non-Molestation order
Though the non-molestation order is one of the most efficient ways to seek protection against domestic abuse, it is a matter of great concern that the Non-Molestation order is being used as a tool to abuse the opposite party and to take tactical undeserving advantage.
It is the opinion of this author that there is an urgent need for the legislation to change and that Ex party Non-Molestation orders should be issued on an exceptional basis and not as a matter of course.
According to the reports of The Guardian, a shared parenting charity has claimed that non-molestation orders are being misused as a legal tactic against parents. This is a sad state of affairs, that needs revisiting and correcting.
It seems that many parents are being encouraged by some misplaced advisors, to falsely claim domestic abuse to get legal aid and stop the other parent from seeing their children or worse to harass the opposite party.
The author's experience is that the non-molestation orders are often exploited and at times misused by some parents to obtain legal aid in family feuds involving children. The weaponization of court procedures by revengeful parents is encouraging false allegations and fueling the conflict between the separated couples.
To understand the significance of this issue, let’s take a look at what is a non-molestation order, who are some of the legalities involved, and how it can be misused?
Who can apply for a Non-Molestation Order?
You can usually apply if you’re a victim of domestic abuse and the person you want to be protected from (‘the respondent’) is:
Someone you’re having or have had a relationship with
A family member
Someone you’re living or have lived with
As per the government website (https://www.gov.uk/injunction-domestic-violence/eligibility-non-molestation) on the date of the authoring of this article it said that:
You can apply if you’re a victim of domestic abuse and the respondent is your:
Husband, wife, civil partner or other relationship
Former husband, former wife or former civil partner
Fiancé, fiancée or proposed civil partner
Former fiancé, former fiancée or former proposed civil partner – if your engagement or agreement to form a civil partnership ended less than 3 years ago
Boyfriend, girlfriend, partner or a person you’re in or have been in a relationship with for more than 6 months
If you were engaged to or had agreed to form a civil partnership with the respondent, you’ll need to provide evidence, such as a ring or statement from a witness who attended a ceremony or celebration.
Can a Family Member apply for a Non Molestation Order?
Yes, a family member can apply for a Non Molestation Order
As per the government website (https://www.gov.uk/injunction-domestic-violence/eligibility-non-molestation) on the date of the authoring of this article, it said that:
“You can apply if the respondent is a close family member, for example, a parent, brother, sister, aunt or uncle.
People who have parental responsibility for your child or grandchild
You can apply if you have a child or grandchild and the respondent is the child’s parent or person you share parental responsibility with.
If your child (or grandchild) has been adopted, you can also apply to get an injunction against their:
anyone who has applied to adopt them
anyone the child has been placed with for adoption
Ø You can also apply for an order against the child or grandchild if they’ve been adopted.”
Can an Under Sixteen apply for a Non Molestation Order?
If you’re under 16 you need permission from the High Court to apply.
What is a Non-Molestation Order?
A Non-molestation order is an order issued by the family court aimed to stop your partner or an ex-partner or from abusing you or your children by limiting their actions such as visiting your house. See the list of parties in the above paragraph.
The domestic abuse includes pestering, intimidating, coercion, or any kind of psychological and emotional abuse other than physical violence.
The non-molestation order is a kind of no-contact order that immediately prohibits the abuser from using physical or verbal violence, pestering or communicating with your or your children (as the order may be). It can stop the abuser from coming in a certain distance of you such as attending the same place of work or visiting the child’s school, or contacting the parties in the matter, directly or indirectly.
More details can be found on https://www.incourt.co.uk/non-molestation-orders
A non-molestation order is an efficient way to seek protection in situations where there is inadequate evidence to charge the abuser or against the behaviour which is not considered a criminal offence according to the law. It is normally granted for 6-12 months but can be extended for a longer period of time under specific circumstances. Once the non-molestation order is issued, the police can put the abuser behind the bars for violating the order.
However, to be able to file for a non-molestation order there must have been an association between you and the abuser under the Family Law Act 1996 such as married, civil partners, or living together, those who have a child together, relatives, and in-laws.
Is the breach of the Non Molestation order a serious offence?
The breach of a Non-molestation order is considered a serious offence that can lead to up to serious consequences and even a prison sentence of up to five years.
Is a Non-Molestation Order breach a Criminal Offence?
Yes, amendments to the FLA 1996 were introduced on 1 July 2007 by the Domestic Violence, Crime and Victims Act 2004 (‘DVCVA 2004’); section the DVCVA 2004 introduced a new section 42A to the FLA 1996 which imported a criminal sanction for breach of a non-molestation order, which became punishable as an offence by up to five years imprisonment.
This change in the law accentuated the gravity of the order and the consequences of breach, underlines the importance of orders being clear in their terms, leaving no ambiguity about their provisions, and/or, to their duration.
Are Non-Molestation Orders Being Misused?
While there is no arguing that domestic violence is a hideous crime and must be handled properly, there are countless people who are innocent and have their lives ruined each year due to false accusations.
The non-molestation orders can be very dangerous tool if used improperly. According to the report of Stop Abusive and Violent Environments (SAVE), over 10% of the individuals charged with domestic violence are wrongly accused.
The mental health impact of Non-Molestation orders?
Having a Non-Molestation Order against you can have a devastating impact on a person’s mental health. The stigma attached alone, of being labelled an ‘abuser’, a ‘stalker’ etc, is damaging to a person’s mental health. You can read more about the impact of Non Molestation orders on mental health on https://www.incourt.co.uk/post/impact-of-non-molestation-order-on-a-father-article-by-practising-paralegal
Do people make false accusations when marriages break?
The false accusations often stem from rocky marriages, the ones that involve divorce or child custody disputes. In some cases, the motive is to gain a variety of benefits such as obtaining a perceived advantage in a child contact dispute, legal aid, or defaming the other out of spite.
The domestic violence system is designed to respond quickly before the facts have been heard in the court to ensure the safety of the victims which makes it easier for the accuser to gain a lot of power by misusing the non-molestation orders. The Ministry of Justice has reported that the number of non-molestation orders issued each year has jumped up to more than 30% from 20,000 to 26,000 during the last five years.
The Chairman of Family Need Fathers, Jerry Karlin blames the increase on the government’s well-intended but half-baked changes to legal aid policy which abridged the access to legal aids for victims of domestic violence. However, Katie Ghose, the Chief Executive of Women’s Aid, disagrees with this claim and links the increase in the non-molestation order to the better awareness of domestic abuse and the legal measures to prevent it.
Does Court Believe the False Allegations?
If anyone is accused of domestic violence, the court will not automatically believe allegations that your ex says whether true or false without investigation. The court might make an order based on the risk of any allegations being true.
If your partner or wife claims that he urgently needs a non-molestation order, the court will only grant her a temporary one without you receiving any court notice before the court grants the injunction. However, you will be given a chance to attend the hearing within a specific number of days of the non-molestation order being granted and request the court to terminate the order. These dates have recently been seen to be moved due to the lack of availability of judges and overload on the court systems. This is concerning.
Sometimes, it might feel unfair if the court appears to be favoring the other party making the allegations without subjecting them to scrutiny. But the reason for this is that if there are serious allegations been made, the court is going to find out whether those are true or not, but in that interim period, between those allegations being made and between the court hearing to decide whether they are true or not, the court must take a cautious approach to eliminate any potential risk to the accusing party or children involved.
So, if you have allegations made against you which you believe are wholly untrue but you feel like the court believe them, bear in mind that the court is only taking the cautious approach and if you present the evidence to prove yourself innocent, the court will give you a fair chance to explain your side of the story before making the final decision.
The Domestic Abuse Pandemic
The pandemic of domestic abuse is spreading like a virus, and the courts need to protect the victims,
But the courts also need to ensure that the abusers do not use the court process to abuse the victim further.
The Office Of National Statistics data says :
On reading and analysing this Data from https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticabuseandthecriminaljusticesystemenglandandwales/november2020 it becomes clear that the majority of the matters do not progress as there are EVEDENTIAL DIFFICULTIES. This is an important point to note as there is a huge difference in reports and prosecutions, and the reason is self-explanatory.
It is his incumbent on the Legal Service fraternity that we note that the court does not allow the applicants of Non-Molestation ( a serious restraining order that may lead to a criminal conviction if broken) to be made as a practice, but is made as an exception.
Are Non-molestation orders being used as a tool to gain tactile advantage against the defendant?
It has been observed by the author that the people use non-molestation orders fraudulently and make false allegations without any genuine justification to gain tactile advantage or simply due to the rivalry to harm the reputation of the target. The non-molestation order enables the accuser to draw on thousands of pounds as legal aid which can be also used in any following family law cases.
Some applicants misuse them as they cannot afford the legal fees involved in children and other family disputes. The non-molestation orders are also used as a tool to turn the children against the other parent. The aim is to improve their chances of getting physical custody and keep the children away from the other parent.
Are Non-Molestation Orders Being Used to Get Free Legal Aid?
There is a risk that the legal professionals may be seen as some of those who failed to stop the misuse of non-molestation orders. The author has sadly known of experience of cases where parents have been talked into seeking such orders by their advisers making false allegations to get qualified for the legal aid as it benefits both the complainant and the legal professional.
As a company Court Help Limited has refused to accept a prospective client who wanted to use our services to seek a Non Molestation order based on false allegations and was very open to acknowledging that,. We refused as it was against our Ethos: https://www.incourt.co.uk/our-ethos
Do people lie to get a Non Molestation Order?
The spokesperson of the Charity claims that since the legal aid was axed in abuse cases in family courts in 2012, an increased number of parents are now filing non-molestation orders just to get their hands on free legal aid. There’s also been a rise in private family court applications over the last two years.
People seek mon-molestation orders by exaggerating the events or even completely fabricating them which makes it really difficult for the defendant to prove his innocence. There is a good reason why Courts refuse Non-Molestation Order applications at times, or would not grant it till a hearing is conducted to hear the respondent.
The non-molestation orders are meant to protect domestic abuse victims in emergency situations but the way they are being misused is opening the doors for exploitation. Here are the main reasons why people are using NMO’s as a tool to get free legal aid:
The non-molestation orders are usually initially issued in the absence of the person being accused of abuse with the allegations being proved true. Ex Parte Order.
The fact-finding hearing at which evidence of the accuser’s claim is heard
The defendant would not be automatically eligible for legal aid and often the basis of the Probability Principle under family Law standard of evidence
The level of evidence required in such cases is quite low and considers verbal abuse, unwanted text messages, or emails as a part of the evidence.
How to Prevent the Misuse of Non-Molestation Order?
There should be more check and balance measures in place to help courts deciphering the truth from fiction and exposing the bogus allegations.
Ex Parte | Non-Molestation Orders should not be issued as a matter of course, and that the Ex Parte Non-MOlestation Order should be issued only as a matter of exception.
Justice can not be granted in a meaningful way when orders are issued based on untested assertions of one party, in absence of the other party.
The fact-finding hearing must take place in the presence of the defendant so that judge can hear the evidence from both parties to make a fair decision. Moreover, the courts must realize that it was for the applicant to prove their false accusations by providing evidence rather than for the respondent to disapprove of them.
Disclaimer: Nothing in this article should be treated as Legal Advice. This is not Legal Advise.