FREE CHAPTER from ‘A Practical Guide to Non-Molestation Orders and Occupation Orders in Family Proceedings’ by Stephanie Coker


1.1         What is Molestation?

‘Molestation’ is not defined in the Family Law Act 1996 (‘FLA 1996’). In Vaughan v Vaughan [1973] 1 WLR 1159, CA the Court considered the meaning of molestation as synonymous with the word ‘pester’ which includes behaviour ‘to cause trouble; to vex; to annoy; to put to inconvenience’. The definition also includes conduct which does not amount to violent behaviour.[1] In Horner v Horner [1983] 4 FLR 50 Ormerod LJ said that molesting ‘does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the Court’.[2]

Noting that there is no legal definition of ‘molestation’, in C v C (Non-molestation Order: Jurisdiction) [1998] 1 FLR 554, Sir Stephen Brown stated that molestation, ‘implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court’. Lady Justice Hale (as she then was) gave some further assistance in C v C [2001] EWCA Civ 1625 when she deemed a non-molestation order justified in circumstances where the conduct complained of ‘was calculated to cause alarm and distress to the mother’, and ‘that is the sort of behaviour, in my judgment, which does call for the intervention of the court’. In Re T (A Child) (Non-molestation Order) [2017] EWCA Civ 1889, [2018] 1 FLR 1457 at [42]:

When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the ‘harassment’ or ‘alarm and distress’ caused to those on the receiving end. It must be conduct of ‘such a degree of harassment as to call for the intervention of the court (Horner v Horner (1983) 4 FLR 50 and C v C (Non-Molestation Order: Jurisdiction) [1998] 1 FLR 554).

Domestic abuse and other abusive behaviours have also been found to amount to molestation. Our understanding of the term ‘domestic abuse’ has evolved over the years to include a wide range of behaviours. Its most comprehensive definition is found in Practice Direction 12J Family Procedure Rules 2010 (‘FPR 2010’) as including:

domestic abuse’ includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence, or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to psychological, psychological, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse, and transitional marriage abandonment.[3]

The introduction of the Domestic Abuse Act 2021 provided a broad-ranging definition of domestic abuse on statutory footing. Section 1(3) of the DAA 2021 defines behaviour as abusive ‘if it consists of any of the following such as physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, psychological, emotional or other abuse and it does not matter whether the behaviour consists of a single incident or a course of conduct’. It is submitted that this definition can now assist the judges, who have a wide discretion to consider the particulars facts of a case and determine whether molestation is made out.

Does making repeated allegations against another party, which are disputed amount to harassment, such that a non-molestation order is justified? This was considered in A v B [2023] EWFC 74, which was a private Children Act application whereby the father initially applied for an order formalising the living arrangements and to limit the mother’s spending time arrangements to supervised contact. The mother cross-applied and accused the father of coercive and controlling behaviour and alleged that her suicide attempts had been a response to his conduct. The mother made further allegations against the father. The father then applied for a non-molestation order against the mother for her to be injuncted against making false allegations of abuse against him. His case was that her allegations amounted to harassment. The mother contested the allegations, and thus, the Family Law proceedings were consolidated with the Children Act application.

The court noted that the father had been deeply affronted by what the mother had alleged. However, the judge was not satisfied that by the mother making allegations or raising issues within the proceedings about his conduct, and then not pursuing it, was by itself evidence that the allegations were fabricated or that their initial report was malicious. It followed that the judge was not satisfied that the mother sought to harass him or pester him or otherwise engage in conduct that would call into question the need for a non-molestation order. Practically, the implication of this decision is that respondents should not automatically jump the gun and conclude that a failure to seek findings on allegations implies that they are fabricated. Whilst respondents are likely to feel aggrieved and be keen to refute allegations of domestic abuse, they should bear in mind that the making of allegations in of themselves do not amount to molestation.

In DS v AC [2023] EWFC 46, Mrs Justice Lieven stated at [27] that:

The law is clear that there does not have to be a positive intent to molest. However, that does not mean that the test is a wholly subjective one whereby the Applicant simply has to feel distress. Such subjective distress does not alone justify the making of an order. The conduct has to be of a nature or degree that justifies the intervention of the court.

Based on the above, it is submitted that any applicant who can demonstrate evidence of any of the behaviours above can qualify for a non-molestation order. Indeed, in C v C [2001] EWCA Civ 1625, Lady Justice Hale (as she then was) held that granting a non-molestation order was justified in circumstances where the conduct complained of “was calculated to cause alarm and distress to the mother”.

1.2         What is a Non-molestation Order?

Victims of molestation or domestic abuse, in its many and varied forms, are entitled to protection of the Court through the grant of injunctions under Part 4 of the FLA 1996. One of the aims of the FLA 1996 is to protect a victim from conduct amounting to violence, intimidation, harassment, pestering or interference which is sufficiently serious to warrant the intervention of the Court. This is achieved through non-molestation orders. These orders are routinely made to protect applicants from all forms of ‘domestic abuse’. A non-molestation order is a protective order containing provisions that prohibit a respondent from molesting another person who is associated with the respondent, and/or prohibiting the respondent from molesting a relevant child.[4] The order aims to prohibit the respondent from inflicting or carrying out some of the conduct listed below.

The non-molestation order can also be made to prohibit the respondent from molesting a relevant child.[5] A ‘relevant child’ is defined in section 62(2) of the FLA 1996 as any child who is living with or might reasonably be expected to live with either party to the proceedings; or any child to whom an order under the Adoption Act 1976, Adoption and Children Act 2002 or the Children Act 1989 is in question in the proceedings; and any other child whose interests the Court considers relevant.

All non-molestation orders are made under section 42 of the FLA 1996 and is a civil remedy. Although a non-molestation order is a civil remedy, breaching this order without reasonable excuse is a criminal offence under section 42A of the FLA 1996. It follows that a power of arrest does not need to be attached to a non-molestation order. Where a person is convicted of an offence under section 42A that conduct is not punishable as a contempt of court.[6] A person that is convicted of such offence is liable (a) on conviction on indictment to imprisonment for a term not exceeding five years, or a fine, or both. On summary conviction, a person convicted is liable to imprisonment for a term not exceeding 12 months, or a fine, or not exceeding the statutory maximum, or both. In the case of a non-molestation order made without notice to a respondent, a person can only be guilty of an offence if they engage in conduct at a time when they were aware that the non-molestation order was in place. Therefore, it is important to ensure that the respondent is served. The procedural requirements regarding service are considered in further detail in Chapter 6.

The FLA 1996 provides that a non-molestation order may be expressed in general terms, or may refer to particular acts of molestation, or to both.[7] The terms of a non-molestation order are often formulaic and commonly include prohibiting the respondent from doing as follows:

  • Use or threaten any violence towards the applicant.
  • Come within 100 metres of the applicant’s address or any address where the respondent knows the applicant to be living.
  • Communicate with the applicant whether directly or indirectly, whether orally, by telephone, text message, email, social media, or any other means except through their solicitors.
  • Threaten the applicant.
  • Post any derogatory, insulting, threatening, or harassing posts regarding the applicant on any social media platform.
  • Not to damage or threaten to damage any property owned by the applicant.

Non-molestation orders can also contain a term prohibiting the respondent from encouraging a third party to do what s/he is prohibited from doing. Clause (b) is an example of a zonal clause as it has the effect of excluding the respondent from attending or coming near a particular address. Careful thought should be given to respondent’s that have to come within 100 metres of the applicant’s address for good reason. For example, it may be that the respondent has family on that street that he/she regularly visits or has a surgery or dentist for example, within that radius. In such circumstances, respondent’s and/or those representing them should consider what practical restrictions may arise with the proposed terms of an order. This can help avoid the respondent being found to have breached the non-molestation order.

In instances where the respondent has a need to enter the street that the applicant lives, it may be worth drafting the order prohibiting the respondent from entering or attempting to enter the specific address. The President’s Guidance on non-molestation orders states that “if the court decides to exclude the respondent from a geographical area, the order should specify a named road or roads or a clearly defined area and avoid the use of expressions such as ‘100 metres from the applicant’s home’. The use of maps, which can become detached, should likewise be avoided unless they are embedded into the body of the order”.[8]

A provision prohibiting the respondent from attending a particular address or area could be expressed as a part of an occupation order. However, it is not necessary to make an occupation order for this purpose alone. It is submitted that a provision requiring the respondent to stay away should not be included in a non-molestation order as a matter of routine, but its inclusion must be proportionate and necessary and supported by evidence. This was confirmed by the court in Mr R v Mrs R [2014] EWFC 48 wherein Jackson J (as he then was) noted that “extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person’s freedom of action and require specific evidence to justify them”.

Ultimately, when drafting non-molestation orders, it is important to bear in mind that they should be proportionate to the parties’ circumstances. In respect of clause (c), it is likely to be inappropriate to bar all communication between the parties, particularly in circumstances where they share children or are in engaged in divorce, financial remedy or Children Act proceedings. Suitable terms in these instances include allowing the parties to communicate via a dedicated email address (if appropriate) or a Parenting App. Whilst communication via solicitors can be a useful third-party avenue, this should not be the only means as the parties may become litigants in person in the future. Also, communicating solely via solicitors can lead to delays in messages being passed on (in an emergency for instance), as well as increase costs for one or both parties.

In many cases, applicants refer to all the terms and seek for them to be included in the non-molestation order made by the court if the application is granted. Whilst this is commonly done, it is good practice to ensure that the orders made are justified by the behaviour complained of. This was shown in PF v CF [2016] EWHC 3117 (Fam), which was an appeal by a husband against a judgment and order of HHJ Murfitt under which following an application by the wife, the judge made a non-molestation order against the husband, and an occupation order in respect of the family home. The first instance judge made a non-molestation order with the standard wording forbidding the husband from using or threatening violence against the wife. The husband was also prohibited from encouraging anyone to do so. However, there was no finding of a use or threat of violence. On appeal, Baker J concluded that the judge ‘was inadvertently led into making an order in terms that were not supported by her findings’.[9]

1.3         Who may apply for a Non-molestation order?

Any individual may apply for a non-molestation order and would be known as the applicant. An individual under the age of 16 may apply for a non-molestation order and occupation order only with the permission of the court.[10] Permission may be granted by the court if “it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order”.[11] At such a hearing, the court will also consider the need for a litigation friend pursuant to Part 16 Family Procedure Rules 2010.

To make the application, the applicant must be an associated person with the respondent.[12] An ‘associated person’ is defined in section 62 of the Family Law Act 1996 and includes circumstances whereby the applicant is or has been:

  • married to the respondent
  • they are or have been civil partners;
  • cohabitants or former cohabitants
  • relatives;
  • they live or have lived in the same household, other than merely by reason of them being the other’s employee, tenant, lodger or boarder;
  • they agreed to marry one another (whether or not that agreement has been terminated). In this instance, evidence of agreement to marry is required.
  • they have or have had an intimate personal relationship with each other which is or was of significant duration;
  • in relation to any child, both are either the parent or has or has had parental responsibility for the child in question;
  • they are parties to the same family proceedings (other than proceedings under Part IV of the Family Law Act 1996), an example being under the Children Act 1989.

It will be for the applicant to set out how they are associated with the respondent. This can be satisfied sufficiently in a supporting statement, and by ticking the relevant box in section 4 of the application form titled ‘Your relationship with the respondent’ below, which is a snapshot of the form.

The scope of who can be categorised as an ‘associated person’ has been considered in the case law. In M v D (Family Law Act1996: Meaning of “Associated Person”) [2021] EWHC 1351 (Fam), the court considered an appeal against the dismissal of a without notice non-molestation order made under section 42 for want of jurisdiction. The case came before MacDonald J in the High Court on the grounds that the appeal raised an important point of principle or practice, namely, the meaning of the term ‘associated person’. The respondent was the appellant’s ‘step-nephew’, and it was her case in relation to being an associated person that the respondent was her ‘relative’. At first instance, the District Judge was not satisfied on the balance of probabilities that the appellant was associated with the respondent for the purposes of section 62(3)(d). The appeal was dismissed for a number of reasons including that step-nephews are not provided as a category in section 63(1) FLA 1996 in contradistinction to other step-relationships that are expressly listed under section 63(1)(a).

The court also has the power to make a non-molestation order ‘if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made’.[13] This provision is very important as it gives the court the power to make a non-molestation order in instances where the applicant is not associated with the respondent. The case of Re T (A Child) [2017] EWCA Civ 1889, concerned an appeal which considered the extent to which a family court may exercise its jurisdiction to grant an injunction under the FLA 1996 to protect a child who is subject to a full care order. In this case, the court made a non-molestation order to protect carers from the mother in public child law proceedings, in circumstances where the mother and her partner did not accept the validity of the care order and at various times embarked upon serious attempts to abduct the child from her carers.

1.4         The statutory test for a Non-molestation Order

The statutory test and the power of the court to make a non-molestation order is set out in section 42(5) FLA 1996. This provision states that in considering whether to make a non-molestation order, and if so, in what manner, the court shall have regard to all the circumstances of the case including the health, safety and wellbeing of the applicant and any relevant child.

The following three principles, from C v C (Non-Molestation Order: Jurisdiction) [1989] 1 FLR 554, FD, should be considered when determining whether to make a non-molestation order:

  • There must be evidence of molestation;
  • The applicant (or child) must need protection; and
  • The judge must be satisfied on the balance of probabilities that judicial intervention is required to control the behaviour of the respondent.

As Lieven J stated in DS v AC [2023] EWFC 46, “orders should not be granted where the evidence suggests that there is some upset at the end of a relationship, and little or nothing to suggest the conduct complained of would amount to ‘molestation’”.[14] It is submitted that the test applies should also be considered when seeking to extend a non-molestation order.

In Re C3 and C4 (Child Arrangements) [2019] EWHC B14 (Fam), the applicant father made a Child Arrangements application in respect of his children, and the mother sought an extension or a new non-molestation order on the terms initially made by DJ Khan in July 2016, and extension of the section 91(14) Children Act order. The father’s conduct that was originally relied upon by the mother in support of her application for a non-molestation order was described by Keehan J as ‘truly appalling’ and ‘extraordinary’.[15] The non-molestation order was made for a duration of 3 years. However, there had been no new incidents since the order was made, but the applicant now sought to rely upon the respondent’s conduct of litigation and repeated applications to the court in support of her application for an extension. Keehan J concluded that “there is no authority to support the principle that a non-molestation injunction can be made to prevent a parent commencing litigation: that is solely the purpose and objective of s.91(14). Accordingly, I see as matters, there is no legal basis for now making a non-molestation order”.[16] He therefore dismissed the application for an extension of the non-molestation order.

1.5         Duration of Non-molestation Orders

Pursuant to section 42(7) of the FLA 1996, a non-molestation order may last for a specified period or until further order. The language of section 42(7) might reasonably be interpreted as suggesting that a non-molestation order should have a finite limit in time, ended either at a named or specified point, or at the latest by the making of a ‘further order’. However, in Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2001] 1 All ER 235; [2001] Fam 415, the Court of Appeal noted such interpretation as being too restrictive and not representing the intention of Parliament. In giving the leading judgment and dismissing an appeal against the making of a non-molestation order of indefinite duration, Lady Justice Hale (as she then was) stated that:

A non-molestation order is indeed sometimes, even often, designed to give a breathing space after which the tensions between the parties may settle down so that it is no longer needed. But in other cases, it may appropriate for a much longer period, and it is not helpful to oblige the courts to consider whether such cases are “exceptional” or “unusual”.

Having cited the legislation and the Law Commission report which had foreshadowed it, Hale LJ went on to say that:

There are obviously cases, of which this is one, in which the continuing feelings between parties who separated long ago are such that a long term or indefinite order is justified.

It follows that when considering the appropriate duration of an order, and whether there is merit in seeking an extension of its duration, parties should consider whether there are still grounds for the continuation of the order. It may be that the initial concerns and complaints that existed at the outset persist or have exacerbated. In such cases, having the order last for a longer period would be appropriate. However, where there are no new incidents, the court is unlikely to extend the duration of the order. Generally, the court will order that the non-molestation order lasts for 6 or 12 months.

Ultimately, orders should not remain in place for longer than is required. In Galan v Galan [1985] FLR 905, the Court of Appeal confirmed that “[n]ormally an order for a short, fixed period will be the appropriate order, if any, for the court to make” and while an order for an indefinite period will not usually be appropriate, “there is nothing in the 1976 Act expressly to limit the discretion of the court as regards the duration of the order”.

A non-molestation order may be varied or discharged by the respondent or the person on whose application the order was made. The court may vary or discharge a non-molestation order made by the court under section 42(2)(b) even if no application has been made. When looking to extend non-molestation orders, parties should provide a statement setting out the reasons why the extension is needed which include clearly involve addressing the criteria that the court would have initially considered when the application for an injunction was made.


[1]   Davis v Johnson [1979] AC 264 334, HL

[2]   See page 51 G.

[3]   FPR 2010, PD12J para 3.

[4]   Family Law Act 1996, section 42(1).

[5]   Family Law Act 1996, section 42 (1)(b).

[6]   Family Law Act 1996, section 42A(3).

[7]   FLA 1996, section 42(6).

[8]   para 18.

[9]   para 39.

[10]  Family Law Act 1996, section 43(1).

[11]  Family Law Act 1996, section 43 (2).

[12]  Family Law Act 1996, section 42(2)(a).

[13]  Family Law Act 1996, section 42(2)(b).

[14]  para 26.

[15]  para 21.

[16]  para 23.