Vicky Lankester writes about the enforcement of Non-Molestation Orders in the criminal courts in Family Law Week

This article was originally published in Family Week

When does a Non-Molestation Order become Legally Effective for Criminal Liability?

The recent case of Director of Public Prosecutions v Dale Stephenson [2025] EWHC 950 (Admin) has confirmed what is required for a Non-Molestation Order (“NMO”) to become legally valid for the purposes of prosecuting someone for breaching one.

The facts

A Non-Molestation Order (“the Order”) was made by the Family Court on 3 November 2023. This was at an oral hearing, where the Respondent was present, having been present throughout. The Order made a specific prohibition, that prohibited the Respondent being present between 7.30am and 4.30pm at a road on which a named child’s school was located. The terms of the Order were outlined at the hearing and were also included in the written judgment of the Judge, which was emailed to the Respondent after the hearing. The Applicant’s representative drew up the Order after the hearing and it was then personally served on the Respondent. The crucial point is that the Respondent’s conduct took place before the Order was personally served on him.

The Respondent then appeared in the Magistrates’ Court having been charged with breaching the Order. It was alleged that he had driven down the road in question at a time at which he was prohibited from doing so. The Respondent’s representative made an argument at the close of the Prosecution case that there was no case to answer. The Magistrates were persuaded that there was no case to answer.

Mr Justice Fordham concluded that there were four steps in the magistrates’ analysis:

Personal service of the Order on the Respondent was required (Rule 10.6 of the Family Procedure Rules 2010 (“FPR”))
Personal service of the Order did not take place until after the conduct in question
The absence of required service meant the Order had not yet become legally effective
An NMO which had not yet become legally effective cannot be the basis of a criminal offence under section 42A Family Law Act 1996

The Appeal

The Director of Public Prosecutions appealed the ruling by way of case stated. The magistrates asked the High Court to decide whether their ruling was wrong in law. The question posed of the High Court was “were the magistrates entitled to find that there was no case to answer on the basis that the offence could not be made out?”

In relation to step one, Mr Justice Fordham stated that the magistrates were correct, as no order had been made for alternative service or dispensing with service. A document is served personally on an individual by “leaving it with that individual” (Rule 6.25 FPR).

The second step in the magistrates’ analysis was also correct. It was an agreed fact that personal service of the Order did not take place until after the conduct in question.

Mr Justice Fordham concluded that the third step was wrong in law. In his judgment, the Order had become legally effective notwithstanding the absence of required service. The reasons for this are as follows:

The Order made by the Family Court Judge was clear. It was made on 3 November 2023; there was no direction by the Judge as to service and did not state that the Order would only be effective after service. On 3 November 2023 the Judge rescinded all previous NMOs. The Judge stated the Order was to run “until a year from today, 3 November 2024”, which was its date of “expiry”. All of this was made during a Court hearing at which the Respondent was present and was recorded in a written judgment delivered that day and provided to the Respondent.
Nothing in the Family Law Act 1996, which is the basis upon which NMOs are made, suggests that the absence of required service will mean that an NMO will not yet become legally effective. The purpose of an NMO is to protect the health, safety and well-being of the Applicant and any relevant child (section 42(5))
Further, section 42A(2) states that someone can only be guilty of breaching an NMO in respect of conduct engaged in when he was aware of the existence of the order. In Mr Justice Fordham’s judgment, that showed the clear intention of Parliament; that an NMO becomes legally effective even where required service has not yet taken place. This is however different to criminal liability arising from a breach of an NMO. Parliament intended an NMO to become effective as soon as it is made, but criminal liability is subject to having a specific awareness of it.
The FPR also do not suggest that the absence of required service means an NMO will not yet become legally effective. They also only state that service must be “as soon as reasonably practicable” (Rule 10.6(1)). Further, Rule 29.15 states that an order takes effect from the day when it is given or made, and this rule is not disapplied in relation to NMOs.
Further, Rule 10.10 explains that a police officer must be served with a copy of the NMO. This states that the order must be accompanied by a statement “showing that the respondent has been served with the order or informed of its terms”. This is clear that the NMO is effective even if proper service has not yet been effected.
Mr Justice Fordham also stated that as a matter of reality, it is only logical that an Applicant should be protected by an NMO as soon as it is made, and a Respondent face criminal proceedings as soon as they are aware of its existence.

As to the fourth step of the magistrates’ analysis, Mr Justice Fordham stated that whether this was correct or not did not arise, due to the error being with the third step. However he made the following points:

Great caution is required whenever points of legal ineffectiveness of an NMO are raised by a defendant being prosecuted with breaching it. As the caselaw is clear (R v Kirby [2019] EWCA Crim 321), the criminal offence can arise even where the NMO is seen as legally invalid, with some legal invalidity arguments being irrelevant in criminal proceedings. Orders are valid, unless and until set aside. If a Respondent is concerned about the validity of an NMO, they should apply to the Court to have it discharged and not take it upon themselves to breach it and then run invalidity as a defence to a criminal charge.
If the Court or legislation were to prescribe when the NMO takes effect, the criminal court must be able to consider that issue of the legal effectiveness of the order.
If the NMO spells out that it only takes effect after a step has been taken and that step has not been taken, the defendant would be allowed to raise it in criminal proceedings. However, the relevance of this would be considered as part of whether the defendant can be afforded the defence of “reasonable excuse” for breaching the Non-Molestation Order

Mr Justice Fordham therefore concluded that the magistrates were not entitled to find that there was no case to answer on the basis that the offence could not be made out. He reversed the determination and remitted the matter to a fresh bench of magistrates to consider

Comments

NMOs take effect from the moment they are made, regardless of whether service has been properly effected. However just because an NMO is legally effective, that does not necessarily mean someone who breaches it is guilty of a criminal offence. Whether a defendant, accused of breaching the order is guilty, would depend on them being aware of the existence of the order and not having a reasonable excuse for breaching it. Being at Court when the NMO is made would clearly result in the defendant being aware of the existence of the order. As Mr Justice Fordham stated, NMOs are there to protect Applicants and relevant children and it would be completely farcical to have to wait until service has been effected for them to have legal effect. Respondents must therefore ensure that they comply with the terms of the NMO as soon as they become aware of it, regardless of how they become aware of it, or risk facing criminal charges.