Cambridge Family Law Practice

Non-molestation orders are made by family courts against individuals who have – or are suspected of having – engaged in threatening or harassing behaviour against individuals with whom they have or had a close personal relationship. The orders forbid certain behaviours for a specified period of time, such as approaching within a certain distance or communicating with that person. The subjects of non-molestation orders are typically (but certainly not always) estranged spouses or former romantic partners.

Legal orders can be issued “without notice” to the respondent when they are issued in response to an apparent emergency or serious risk of immediate harm to the applicant. The subject of the order is not informed in advance and does not participate in the hearing. In most cases, these “without notice” non-molestation orders are strictly time-limited.

The case in question concerned a romantic relationship that lasted a little under one year, from October 2021 to September 2022. The couple met via a professional networking group. As time passed, the women began to feel that her boyfriend was behaving in a controlling manner towards her, monitoring her whereabouts, sending her multiple messages per day, encouraging her to drink more alcohol than she felt comfortable with, and accusing her during arguments of being ungrateful or flirting with other men.

The relationship began to deteriorate further when the woman became aware of complaints made by others within the group about the man’s behaviour.

In the Family Court sitting at Birmingham, Mrs Justice Lieven described these problems as:

“…a fairly typical account of a failing relationship, and much of the …account is open to different perceptions of what was happening between the parties.”

The woman finally ended the relationship in September 2022. She had started working in her (then) boyfriend’s business, and believed his behaviour had become even more demanding at that point. The break-up led to a financial dispute, which triggered an exchange of emails throughout October. Eventually, in November, the women applied for a without notice non-molestation order. This was refused by a District Judge, and the matter instead referred for a hearing with notice – i.e. with the former boyfriend informed and able to participate.

Noting that the former boyfriend had made no contact with the woman for three weeks prior to the first application, the Judge declared that:

“In the present case the [earlier] District Judge was entirely correct not to grant the order on the without notice application… there was simply no basis for making a without notice order. Such an order is only appropriate where there is significant risk of immediate harm…a without notice order would have been wholly inappropriate on facts such as this.”

In addition, the Judge declared, there was no justification for a with notice non-molestation order either. While there is no specific legal definition of molestation, and people can interpret particular behaviours in different ways, she explained that:

“…the conduct [complained of] has to be sufficient to justify the intervention of the court. 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.”

Mrs Justice Lieven continued:

“Here the Respondent [the former boyfriend] probably sent the Applicant an excessive number of texts and emails at the end of the relationship and at least one of them was angry and hurt. However, by the time the application was made that conduct had ceased. There was in my view no proper basis for the intervention of the court.”

Gail Marchant-Daisley, one the founding partners of Cambridge Family Law Practice observes: “Whilst this case doesn’t add anything new to the law concerning non-molestation orders, it does help to have the High Court consider such a case and to distil the key ingredients in a non-molestation order application, both with and without notice. This may catch the attention of some of the increasing number of litigants in person who may find themselves in the position of considering whether to make such an application.”

View the full judgement here.