Non-molestation and Occupation Orders
The upcoming third (and final) House of Lords reading of the newly enhanced Domestic Abuse Bill, and the public reaction to Sarah Everard’s tragic death, have led domestic abuse (and violence against women in particular) to come under renewed scrutiny. Since the Covid-19 lockdowns began, calls to helplines for both male and female victims of domestic abuse, related calls to the police, and calls to helplines for perpetrators of domestic abuse looking for support to stop have all been up on previous years. A recent YouGov poll reportedly found that 97% of women between 18-24 years old, and 80% of women of all ages, have suffered ‘sexual harassment’ (although this writer notes it is unclear how this was defined in the survey). In light of this, this post will consider how non-molestation and occupation orders can be used to assist people who find themselves in danger.
What is a non-molestation order?
This is an order made by the court which aims to prevent a respondent harassing, threatening or physically injuring the applicant. The court must first be satisfied that there is evidence of molestation, that the relevant person needs protecting, and that on the balance of probabilities the intervention of the court is required to change the respondent’s behaviour. The court has wide ranging powers in terms of the provisions made, which can include:
- preventing a respondent going to, or attempting to enter, a defined area such as a residential building or place of work, or a surrounding perimeter
- preventing a respondent contacting an applicant directly, or indirectly (such as getting mutual acquaintances to pass messages, or using social media tags - commonly an exception is made for communication through solicitors)
Under section 42 of the Family Law Act 1996 (“FLA 1996”), these orders can be made “for a specified period or until further order” and in considering the factors described above, the court must take into account “all the circumstances including the need to secure the health, safety and well-being— (a) of the applicant; and (b) of any relevant child.”
Once made, a non-molestation order must be served on the respondent in person in order to take effect. Copies should also be sent to the nearest police station/s. Breach of a non-molestation order is a criminal offence under section 42(A) of the FLA 1996, thus transforming the impact the police can have in cases where the respondent’s behaviour was not necessarily previously criminal in itself.
What is an occupation order?
An occupation order can be similar to a non-molestation order, as it can be used to prevent a respondent from living at a particular property, even if they own or otherwise have a right to reside there. However, they can also be used to control parties living alongside one another in the same building, and can specify things such as what rooms each party is allowed to enter, and when they may use shared facilities (for example restricting parties to their own bedrooms, and to using the kitchen at certain times so that they do not need to cross paths). The court’s powers stem from FLA 1996, but the particular provisions relied upon depend on whether the respondent has a pre-existing legal right to live at the property.
As there is a risk that orders excluding someone from their home can effectively make someone homeless, the court takes these very seriously, generally imposes them only for a short period of time, and applies the ‘balance of harm’ test. They will consider the impact on the applicant and any associated children of failing to make the order, versus the impact to the respondent of making it. Under section 33(6) of the FLA 1996, it will also take into account all the circumstances such as the parties’ housing needs, conduct towards each other, and financial resources.
Unlike non-molestation orders, occupation orders will not automatically have a power of arrest associated with them, but it is possible to attach such powers to the order if requested in the application.
Who can apply?
Only ‘associated persons’ can apply for non-molestation or occupation orders. Under section 62 of the FLA 1996, this includes:
- cohabitants (living together as if married or in a civil partnership) or former cohabitants
- spouses/civil partners or ex-spouses/ex-civil partners
- other people who are living/have lived together (other than in the course of employment)
- currently or formerly engaged partners
- those who "have or have had an intimate personal relationship with each other which is or was of significant duration”
- relatives (by blood or marriage)
- parents of/people with parental responsibility for, the same child
- people who are parties to the same proceedings within the family court (such as financial remedy/child arrangements proceedings)
You can apply on your own behalf and/or on behalf of a relevant child (e.g. children who can reasonably be expected to live with you, such as their own biological child, adopted child, or ward). Even persons under 16 may apply for a non-molestation or occupation order for their own protection, as long as the court is satisfied the young person has sufficient understanding and therefore grants permission (section 43 of the FLA 1996).
Where a person is the victim of harassing behaviours by a non-associated person, there are potential criminal and civil remedies under the Protection from Harassment Act 1997, which the firm's media & communications law department can advise on. These includes claims for damages and injunctive relief.
What is an “ex parte” or “without notice” hearing?
In a situation where the applicant’s imminent physical safety is at stake, it is possible to apply for one of these orders and attend the first hearing without the respondent’s knowledge it is happening. The court will only ever make an interim order at these hearings and will set a date for a further hearing (frequently called a ‘return hearing’), before which the respondent will be given the chance to prepare, and to argue at that hearing that the order should not be extended. The turnaround time between hearings is usually very short in litigation terms (e.g. a couple of weeks) so it is important for respondents finding themselves in this situation to seek legal advice as fast as possible.
What other options are there if you’re in danger?
The police have powers to issue domestic violence protection notices/orders in some cases of domestic abuse which amount to criminal activity, and can make arrests where necessary (which can include instances of abuse which are non-domestic in nature). Calling 999 for assistance from an ‘on the ground’ police presence should always be a first port of call in cases of imminent physical danger. In the longer term, if you are suffering from your spouse/civil partner’s poor behaviour, you may want to consider a divorce/dissolution and move towards financial independence. If the person in question is your cohabitee, you may want to consider moving out and dividing your assets. Approaching a specialist solicitor early on for advice on your options is recommended.
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Articles are intended as an introduction to the topic and do not constitute legal advice.