Non-molestation orders – a reappraisal

04 April 2023

Ex-parte, or without-notice, non-molestation orders form an ever-increasing proportion of the workload of courts and lawyers.

As a gateway to obtaining legal aid on the grounds of domestic abuse, they are sometimes hurried through without thought given as to the proper form such an application should take and whether the stringent test for the making of a without-notice order is met.

This is detrimental to all users of the court system.

  • To litigants who come to court expecting an order who do not obtain one.
  • To litigants who should properly be granted an order but are not provided with relief due to an inadequate application.
  • To litigants who unfairly have an order made against them.
  • To victims of abuse for whom the court process is being used as a continuation of that abuse; to children whose safety and wellbeing are at risk in situations where an order is not made and sometimes when it is made.
  • To litigants and the legal aid agency where applications improperly made lead to unnecessary costs.
  • To all other users of an already overstretched system where time is unnecessarily allocated away from genuinely urgent or properly made applications.

This experience seems to have filtered through to the higher courts. In the case of DS v AC [2023] EWFC 46 Mrs Justice Lieven took the time to issue a reminder of the strict test for ex-parte orders. She also emphasised the kind of contact required for such an order.

The tendency for orders to be granted based on conduct which is perhaps arguably not more than a bad break-up is growing. This creates further litigation in a climate where everybody agrees that precious court resources should be allocated to cases which truly require it.

In any case where someone seeks or opposes the granting of an order, it is well worth considering the concise and detailed judgment when assessing the application’s merits and advising often vulnerable clients about what to expect, and, for victims of abuse, how best to protect themselves.