It is far too common for judges to grant applicants non-molestation orders on an ex-parte basis.

The case of DS v AC [2023] EWFC 46 provides important guidance on the circumstances in which an ex-parte order can be made.

The case reminds practitioners and judges of law surrounding applications for non-molestation orders, and the circumstances in which an order may be granted.

Paragraph [23] of the judgment aptly summarises the law as:

1. On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a);
2. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);
3. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at [1];
4. The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at [1];
5. “molestation” does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court, Horner v Horner at 51G;
6. The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child);
7. There does not have to be a positive intent to molest, Re T at [42].

Zubair Mughal specialises in proceedings under the Children Act and Family Law Act. He had successfully represented clients making and responding to applications for non-molestation orders.

He accepts instructions directly form the public under the public access scheme, also known as direct access.

To instruct Zubair to represent you at a hearing, or for family law advice, contact him through the contact page of this website.