Offence in family cases an ex-partner may seek a non-molestation order.

They are entitled to make that application without telling the person, against whom the order is sought, in advance.

This is because there are some cases where a person would seek to prevent the another person from even making the application at all, and so these without notice orders are designed to protect against such scenarios.

Should the court grant the order, the order will only become effective once the person whom it is made against is made aware of it (typically by personal service, but this is not compulsory).

This article is designed to assist those responding to an application (if you seek to make such an application please contact us accordingly).

If your ex-partner goes to court without informing you, then when is the next court hearing?

The recent case of Re W (Minors) [2016] EWHC 2226 made it clear that a further hearing should be set up within 14 days of the order being made, on a specified date.

That approach has now been endorsed by the practice guidance given by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/publications/practice-guidance-family-court-duration-of-ex-parte-without-notice-orders/).

This of course enables a person responding to the application to attend at court and put their case, without the onus being on them to actually request that a court date be listed.

It is important for a respondent to attend at the next hearing, not only so the court is made clear of their position, but also because the court can make a further order if you fail to attend

What is challenging the order actually going to achieve?

Many respondents feel aggrieved when they see that a person (typically an ex-partner) has sought to take out a court order against them on the basis of what they profess are simply vicious lies.

With that, many people opt to fight against an order simply because they do not want the applicant to ‘win’, or for their own name to be blackened.

However, a respondent should always consider what challenging the order is actually going to gain.

If a person opposes the order and succeeds in proving the applicant wrong that may just create further animosity between the parties (which can be particularly unhelpful if there are children involved), as well as adding pressures of both time and money.

Instead, a respondent can either i) not oppose the order or ii) agree to undertakings (which is a promise to the court not to do things) on the basis that they do not accept any of the allegations that have been made against them – this avoids the need for a contest, it shows the court you are not simply in it to prove the applicant a liar, and inevitably is only preventing a person from what they should not be doing anyway (i.e. assaulting the applicant).

You should get early legal advice. Many respondents will tend to attend the hearing, only to tell the Judge that they would like an adjournment to see a legal professional.

At that point, the case will end up having a minimum of three hearings before one can see any real progress being made.

Owing to legal aid no longer being available to a respondent in these types of applications, it is a worthwhile investment to obtain early legal advice, even if that is limited to a conference as to what approach you should take at a forthcoming hearing.

A legal professional can offer a person invaluable guidance as to how to respond to such applications, and that person will inevitably have a solid insight into the law, as well as an understanding of the particular practices of that court

Gather your evidence. If agreeing to an order/undertakings on the basis you do not accept the allegations is not an option, give careful consideration to the evidence that you need to help support your case.

The applicant will have their own statement, but may also have witnesses, medical and police evidence – the real issue is what do you have to rebut their allegations?

The court approaches these cases on the understanding that it is for the applicant to prove their case on the balance of probabilities (i.e. 51%) – if you are unable to get any independent evidence to support your case, it is likely that this will make it all the more difficult to successfully oppose the application.

Remember to adhere to the terms of the order. Before the court hears your initial position (and possibly after if the case is being listed to entertain a fully contested hearing), then the order will usually remain in place.

This will specify terms, typically that you must not contact the applicant/attend at their house etc.

It is vital that these terms are adhered to for the life of the order, firstly because it will make an incredibly poor impression on the court if not, but also because breach of an order is a criminal offence and one could therefore find themselves arrested/with a conviction simply for ignoring the order.

Courts take these matters very seriously and, irrespective of whether the order is justified, whilst it exists, it must be adhered to.

All in all, non-molestation orders require some careful thought and consideration when responding to them.

It is all too easy for people to get caught up in the case because of the emotional attachment between the parties.