We are often approached with the query “What do I do if someone has lied and falsely applied for a non-molestation order against me?”
Non-molestation Orders are Court Orders which have a range of restrictions in order to protect victims of domestic abuse.
Unfortunately, there is an inherent risk that they can be applied for maliciously and you might find yourself having to consider how to defend yourself when you have not done any wrong. Of course, nobody should ever lie or mislead the Court, to obtain such an order; unfortunately sometimes this happens.
Non molestation orders can be applied for by anyone who is an “Associated Person” of the Respondent. Most commonly, these include:
- Spouses and former spouses / civil partners/ former civil partners.
- Cohabitees or former cohabitees.
- Those who live or have lived in the same household (other than by one of them being the
- other’s employee, tenant, lodger, or boarder).
- Certain relatives; The main ones include parents, siblings or children.
Child Applicants under the age of 16 may first require permission from the Court before they are allowed to apply.
Non molestation Orders are designed to protect victims of domestic abuse or any relevant children.
Domestic abuse, or “Molestation” does not have a set statutory definition, and can include:
- physical violence
- sexual violence
- emotional or psychological abuse
- economic abuse
- coercion and controlling behaviour
- isolation, and more.
There does not have to be a specific number of incidents for domestic abuse to have occurred and it could be a single incident or repeated behaviour.
A non-molestation Order protects the Applicant by placing restrictions on the Respondent. It can forbid specific actions of the Respondent or general behaviour, or even both by forbidding them to:
- use or threaten violence towards the Applicant or instruct or encourage another person to do so
- harass, pester or intimidate the Applicant, or instruct or encourage another person to do so
- communicate with the Applicant, except via specified means in specific circumstances
- damaging or threatening to damage property, or instructing/encouraging another person to do so.
Some non-molestation Orders may even include a zonal restriction, preventing the Respondent from entering or coming within a certain area around the Applicant’s home/work place/relevant child’s school.
These are much more draconian in nature, and there is a risk that they effectively act as an Occupation Order if the zonal restriction is too wide.
Normally, non-molestation Orders are in place for a fixed period of 6-12 months, although this can be extended.
There are a number of reasons you might find yourself on the wrong side of a non-molestation order application, following false allegations being made against you. It may be a case that the allegations are outright lies, or the truth has been exaggerated substantially.
If findings are made against you, whilst you are in the course of a child arrangements application, the Applicant may believe that they will be at an advantage for that application. It may also be a means of obtaining a financial benefit and fraudulently applying for Legal Aid in order to manage the extensive legal costs of the child arrangements application. It can also be used as a means to prevent you from being eligible from any legal aid as Respondent, and therefore obtaining your own legal-aid funded advice/legal representation.
Unfortunately, it could simply be the case that the Applicant has made the application maliciously and spitefully. This can be particularly hurtful, given that the Applicant is an associated person to you. This can have a significant impact on your mental health in light of the false allegations being made against you.
In order to protect as many victims as possible, as soon as possible; the evidential bar is low, and allegations of verbal abuse, or text messages that have been sent in the heat of the moment, can be submitted as evidence.
As mentioned above, the abuse an Applicant claims to have suffered does not have to be a repeated occurrence.
Following the Coronavirus pandemic, the Legal Aid Agency have increased the possible ways in which domestic abuse might be evidenced in support of an application, in order for the Applicant to access legal aid with more ease.
The Applicant must complete FL401 form in which they must detail their allegations of abuse by you.
The Applicant will also have to provide to the Court a statement and evidence as to their allegations.
It is possible for the Applicant to apply for a without notice non-molestation order, if it is alleged that they, or a relevant child, are at risk of significant harm should an immediate order not be made. The Applicant might also allege that they may be deterred or prevented from making such an application if an immediate order is not made against the Respondent.
If such an application is made, you as the Respondent will not receive notification of the Application before the Court grants the Order.
This can seem very unfair, as you are being subjected to strict Orders of the Court despite the allegations against you not being true. However, the Court will determine whether or not the allegations are true during the Proceedings and it is important to note that an interim Order, or “Ex-Parte” Order, is granted on a temporary basis and without establishing a factual basis, to reduce any potential risk to the Applicant and then the matter is listed for a further Hearing to allow you an opportunity to explain your position to the Court.
A Pre Trial-Review Hearing will take place and following this, a further final hearing will take place at which point the Judge will determine whether or not an Order should be granted against you. The Court will either say that the allegations made against you are true, and therefore order that a non-molestation order is required, or alternatively, consider that the allegations are not true, and you will not be subject to any non-molestation order terms.
If you believe that the allegations made against you are unfounded, then you may wish to consider appealing the ex-parte Order made, or contesting the allegations.
It is important to obtain legal advice as soon as possible in order to guide you through the process of contesting a non-molestation application.
It is important to carefully consider the evidence submitted by the Applicant for any inconsistencies, and whether it is sufficient to demonstrate that the Applicant has been subjected to molestation and requires the protection of a non-molestation order. You must consider this carefully and respond to each of the allegations, setting out your version of events in detail and refute the allegations made against you.
The terms of any interim Order granted must also be considered and appealed if there are specific terms which are unnecessary or disproportionate.
It is important to consider the allegations against you very carefully. Whilst you may be certain that the allegations are false, there is a risk that the Judge’s opinion differs and you are then left with a finding of domestic abuse against you. This can then be used by the Applicant in any associated proceedings such as child arrangements which may have an adverse impact on you in the course of that matter.
Where the Court is considering the allegations and making a non-molestation Order, the Court may accept an undertaking from the Respondent as an alternative. These are solemn, legally binding promises reflecting what would have been worded as a non-molestation order.
The Respondent can offer the undertaking to the Court as an alternative to them making a full non-molestation Order, or on the basis of no admission being made by you that the allegations are true. This serves as a means of preventing the proceedings from escalating further and you both going through the stress of court proceedings.
However, in situations where the Respondent is found to have used or threatened violence against the Applicant/any relevant child, the Court will likely not accept an undertaking.
If an undertaking is breached, you will be in contempt of court which has significant consequences.
if you do something that the Order prohibits you to do, without a reasonable excuse that you have breached the non-molestation Order which is very serious
A criminal offence has been committed and you may be subject to a criminal sentence of up to 5 years or be ordered to pay a fine depending on the severity of the breach.
At Laker Legal Solicitors, we are well aware of the challenges that can arise in facing a non molestation application which you believe is false.
They can be ordered to pay a costs order (ie your legal costs) they can be held in contempt of Court if they are found to be dishonest. Unfortunately, this rarely happens, especially when a person is subject to legal aid.
If legal aid is being fraudulently obtained then it is necessary to inform the legal aid fraud department if you believe the person is not entitled to legal aid either based upon their means (financial position) or merit (the grounds they are citing to obtain legal aid).
Our expert family solicitors can guide you through this difficult process. If you would like an appointment with one of our specialist non-molestation solicitors in Preston, Kendal, Lancaster, Maidstone or Kings Hill please get in touch by filling in our contact form, emailing us firstname.lastname@example.org or by calling us directly on 01524 753040.