When allegations of domestic abuse are made there are different remedies available to the Court; there are two main types of Family Court Order to protect someone from domestic abuse, Non-Molestation Orders (NMO) and Occupation Orders (OO). Both of these Orders are a type of injunction, meaning they require a person to do (or not to do) something in particular.
If allegations are made against someone to whom you are not related, in certain circumstances it is possible to apply to the County Court for a Civil Injunction under the Protection from Harassment Act 1997. However, this article focuses on NMO’s.
What is a Non-Molestation Order?
The law relating to NMO’s can be found under s.42 of the Family Law Act 1996.
NMO’s are generally issued to stop an abuser from contacting, trying to contact or communicating with you in any way or by any means, save for in certain circumstances when they may be permitted to contact you either via solicitors or through an agreed third party to make child contact arrangements. Alternatively, some directly limited communication may be permitted to make arrangements about any children you may have together.
NMO’s can also prohibit the abuser from contacting or communicating with your children in any way or by any means except for any contact or communication which the Court has ordered, or which has been agreed in advance between you and the abuser in writing.
A further term that an NMO could include is to forbid the abuser to track where you and/or your children are and/or what you and the children are doing, including but not limited to electronic devices or apps.
The abuser can be prohibited from damaging, interfering with or disposing of, in any way, any property belonging to you or jointly owned by you and the abuser, unless a Court Order allows them to dispose of any such property, for example if you own a property together and there is an Order in place permitting its sale (disposal).
Abusers can be forbidden to post or threaten to post about you and/or your children and/or the NMO proceedings on the internet or social media; and also disclosing or threatening to disclose private sexual images or films of you to any third party or organisation.
An NMO could also prevent your abuser from coming within a certain distance of your home and/or the road on which you live.
Will I be eligible to apply for a Non-Molestation Order?
You can apply for a NMO if you are a victim of domestic abuse.
To make an application, you and the person you want to be protected from must be ‘associated’, for example: are/were married, are/were civil partners, in a relationship, living together/have lived together, have a child together, or are family members.
Legal Aid is available for NMO’s, provided you pass the financial means test. At Johnson Astills, we can carry out an assessment over the phone and let you know whether you would qualify for Legal Aid. If you do not qualify, then we can offer advice, assistance and representation on a privately paying basis.
What is the process of obtaining a Non-Molestation Order?
You must apply to the Court with a form FL401, alongside a statement to support your allegations of domestic abuse. The opposing party will then be notified, and a Hearing will be listed, which you both must attend. If the opposing party admits the allegations (or does not attend) then the Order is made, but if they deny, then a Contested Final Hearing will be listed, where the Judge will decide the outcome of your application. At a Contested Final Hearing, both you and the opponent will have to give oral evidence.
If notifying the opposing party of your application would cause greater risk to your safety, then an application may be made without notice being given to them.
At the without notice Hearing, if the Judge considers that you are imminent risk of harm and that notice of the application is likely to increase this, then they would usually make the Order you are seeking in order to protect you.
For the Order to come into effect it must be personally given to your abuser.
There will then be a further Hearing, at which attendance is often only required by your abuser. At that Hearing the Judge will usually ask your abuser whether or not they agree with the Non-Molestation Order continuing. If they do, then the Order will just remain in place and there will not be any further Hearings. If they do not, then the Court will usually set the case down for a further Hearing, which both you and your abuser will have to attend. The Court may say that your abuser needs to prepare a statement to be sent to Court and you before this Hearing takes place. At the next Hearing, the Court will determine whether it is necessary for the case to be set down for a Final Contested Hearing.
If, at the without notice Hearing, the Judge does not consider it necessary and proportionate to make a Non-Molestation Order at that stage, then the case will usually be set down for an urgent Hearing, which both you and your abuser will be ordered to attend.
What if a Non-Molestation Order is breached?
A Power of Arrest is automatically attached to a Non-Molestation Order.
Breaching (breaking) an NMO is automatically a criminal offence under the Family Law Act 1996, meaning you can call the police immediately, and they have the power to arrest the person in breach, who may be brought before the Criminal Courts and if found guilty of breaching the Order, they can be sentenced to up to five years’ imprisonment, fined, or their assets may be seized
Breaches may also be dealt with in the Family Court as a contempt of court.
If you would like some advice regarding Non-Molestation Orders, please get in touch with the Family Team today – we would be more than happy to discuss your matter further. You can call us at our Leicester office on 0116 255 4855 or our office in Loughborough on 01509 610 312. Alternatively, feel free to email us at legal@johnsonastills.com, or fill in our enquiry form.
