If you find yourself served with a non-molestation order, you might be curious to know the legal processes that will follow.
Like with many areas of law, numerous legal terms are used, which can be confusing to anyone unfamiliar with them.
In this blog, we will try to demystify and explain the legal process involved in non-molestation orders and how our team can help you contest them.
Return Hearings And Undertakings
Applications for Non-Molestation Orders are made to the family court and will usually be heard by Magistrates or a District Judge.
They are designed to prohibit the respondent from molesting the applicant and any relevant child.
Once the court grants a Non-Molestation Order, whether following the making of an application on notice to the respondent or without notice (often referred to as an ex-parte application), the court will list the matter to be heard on a date in the future usually within 14 days.
This hearing is called the Return Hearing.
Non-Molestation Order Process: The Return Hearing
The parties to the proceedings, the applicant and the respondent, will be provided with a notice from the court advising when the court will hear the return hearing.
Often the court will set aside 30 minutes for the return hearing, and both parties will be allowed to address the court.
In the intervening period, it is important to stress that any Non-Molestation Order already made by the court, to which the respondent is aware, must be obeyed by the respondent.
The Return Hearing allows the respondent to contest the Non-Molestation Order if they wish and invite the court to consider setting it aside or considering alternative disposals such as undertakings (more on these below).
Contesting A Non-Molestation Order
As a respondent, you can contest the making of a Non-Molestation Order, which is common, especially where the applicant has made false allegations within their application for the Non-Molestation Order.
However, careful, thorough, and expert preparation is required if a respondent is to be successful in persuading the court to set aside the order.
The court will require the parties to the proceedings to file statements. The applicant will have to file a witness statement in support of their application for a Non-Molestation Order, and the respondent, if they wish to contest the order, will need to file a witness statement in response.
The respondent's witness statement in response will need to provide a detailed background of the respondent's relationship with the applicant and address each allegation made by the applicant in their application methodically. This can be a difficult and often complicated task where several allegations are being made by the applicant, which the respondent seeks to challenge.
Usually, the parties' witness statements would be filed with the court and exchanged before the return hearing. This will help the parties and the court to understand the issues agreed upon and not agreed upon. The court will also allow the parties to make any further statements.
The court will need to consider whether the Non-Molestation Order should remain in force or set aside or whether undertakings may be considered by one or both parties to the proceedings.
The law requires the court to consider the circumstances of the application as a whole and whether to grant or refuse the application sought by the applicant. In doing so, the court will consider whether an order is required to secure the health, safety and well-being of the applicant and any relevant child.
A respondent to a Non-Molestation Order commits a criminal offence if they are found to be in breach of the order without reasonable excuse, so these orders are severe. They can have far-reaching consequences if not considered carefully.
Non-Molestation Order Process: Undertakings
In some circumstances where the court is considering an application for a Non-Molestation Order, the parties may wish to consider offering undertakings as an alternative.
An undertaking is a solemn promise to the court and is likely to include terms that require the respondent not to molest or harass the applicant.
If the terms of an undertaking are breached, then the applicant may seek to commit you to prison for Contempt of Court.
If the court concludes you have breached your undertaking, you may be imprisoned for up to two years and receive a suspended sentence of imprisonment or an unlimited fine. Therefore, the offering and acceptance of undertakings require serious consideration.
For a respondent who is concerned that an applicant who has a history of making repeated false allegations against them might make false reports of a breach of a Non-Molestation Order which has a power of arrest to the police, an undertaking might be worth consideration but only with the benefit of expert legal advice.
Undertaking with consent
It is also important to note that an undertaking can only be made with consent.
No party to the proceedings can be forced to enter an undertaking.
Further, a respondent should only offer an undertaking in circumstances where they feel they may have acted in a way towards the applicant which might have been unreasonable or perhaps even threatening.
An undertaking should not be offered if the respondent is sure they have not behaved in any way towards the respondent as is alleged or unreasonable. However, an undertaking may be offered on the respondent's own version of events.
This is particularly helpful where a respondent feels strongly that they do not wish to go through contested court proceedings and also wish to protect their own position.
Cross-undertakings work similarly to an undertaking from a single party to court proceedings. The only difference is that both parties to the proceedings provide undertakings (solemn promises) to the court.
These types of undertakings are particularly helpful where both the applicant and the respondent reflect that they both may have acted unreasonably towards one another and wish to draw the matter to a conclusion. It can almost act like drawing a line in the sand if both parties promise, for example, not to contact one another again or molest or harass one another.
Again, it would be open to either party in the event of any breach of the undertaking to instigate Contempt of Court proceedings.
Before entering any court undertaking, it is essential to obtain independent legal advice from family law experts.
Our team of family lawyers at Monan Gozzett are experienced in representing clients in these proceedings. They will be happy to provide thorough and robust advice and support.