Do you need a Non-molestation or Restraining Order?
Sometimes, a woman just needs a little court enforced peace in her life – and the difference between an undertaking, a non-molestation order and a restraining order can be confusing.
You may be thinking that as Undertakings, Non Molestation Orders and Restraining Orders are all designed to get your ex off your back, it doesn’t matter which one you get.
The problem is that there are pros and cons to all of these options, so it makes sense to know more about them before holding your hopes out for something that doesn’t help you in the way that you need.
What’s a Non Molestation Order?
A Non Molestation Order is an enforceable order made by the Family Court. Non molestation orders forbid an abuser (the Respondent) from being violent, threatening or abusive. They can also order the Respondent to stay away from your home and / or your workplace.
Non Molestation orders typically last between 6 months to 1 year. Because it is a court order, a breach of the terms of a Non Molestation Order can lead to contempt of court or committal proceedings – as well as a Criminal charge.
Because the penalty for breach a Non Molestation Order can include a prison sentence, anyone applying for a Non Molestation Order will need to prove to the court that the Order is necessary and that the Respondent knows about it.
The problem is that you will need to present a case to the court with evidence to show why a Non Molestation Order should be given to you.
Sometimes, Respondents try to avoid getting in trouble with the court for breach by saying they didn’t know anything about the Order – so a further problem can be proving you have properly served the Order on the Respondent.
Many people find that hiring a process server helps avoid Non Molestation Order service problems. Process servers should provide you with an Affidavit of Service, which will come in handy should any disputes about whether the order was properly served arise. Please note that there is a difference between a Certificate of Service and an Affidavit of Service. An Affidavit of Service is “sworn” and will have a greater evidential weight in many circumstances. When your safety is at risk, you may find the process server fee is worth every penny.
How do I get a Non Molestation Order?
The first step is to download form FL401
The next step is to prepare a witness statement. Rights of Women have an Information Page for Family law which is a great starting point. Because it has templates you can use to help with the format and content the court will be looking for, I recommend paying the £10.00 for RoW’s Domestic Violence Injunction Handbook.
Whether you get the Domestic Violence Injunction Handbook or get professional help from a lawyer, the point of the witness statement is to prove to the court that a Non Molestation Order is necessary. This means you will need to prove (on a more likely than not basis) that you need a court Order to protect your health, safety and well-being. I think it’s important to spell this out for the court.
For example,
“The Respondent unexpectedly comes to my workplace to threaten and swear at me. This is despite both me and my manager telling him on 8 April that he’s not allowed to come here. Since 8 April, he has waited for me in the parking lot every night after my shift, screaming in my face that I will listen to him – or else. This has had a big impact on me emotionally and I am terrified that he is going to cause me physical harm”.
In the above scenario, a witness statement from your manager could help support your application – as would any documentation from your GP or CAD numbers from the police.
Once your application form and witness statement are completed, you will need to decide whether you want to a “without notice” or “with notice” hearing.
Is an Undertaking the same as a Non Molestation Order?
While an undertaking can have the same no contact / prohibition from being violent and abusive etc provisions as a non-molestation order, there are a few big differences.
The first difference is that it’s harder to enforce an undertaking – whereas if someone breaches the terms of a non-molestation order, they can be arrested. Trouble with the police can be an effective way of focusing an abuser’s mind and ensuring they follow the terms of a non-molestation order.
There’s no power of arrest attached to an undertaking. While there is potential for the person who breached their undertaking to get in trouble with the court – eventually – there is a big difference in law between breaching an undertaking (breaking a promise) and disobeying a court order.
Sometimes a respondent’s lawyers will try to say, “S/he’s willing to give an undertaking” or “There’s already an undertaking in place” to try to dissuade you from applying for a non-molestation order. While an undertaking maybe the path of least resistance, it may not be right for your circumstances – especially if you are asked to agree an “exchange” of undertakings, where you also agree to leave the other person alone. These “exchanges” can make you appear to be just as bad as your abuser – and may be used as leverage in a future Criminal or Family case. Your future self will thank you for taking legal advice before signing anything.
What is a Restraining Order?
While a restraining order can have the same prohibitions (non-contact / not to go to) as a non-molestation order, restraining orders are granted by the Magistrates or Crown Court – and not the Family court.
How do I get a Restraining Order?
Criminal courts have the power to grant restraining orders under the Protection from Harassment Act under s5 (on conviction) or s5a (on acquittal). The court usually needs to hear evidence about the abuse at a trial. The court will grant the order if it thinks one is necessary and proportionate to prevent future harassment or violence.
If there is a Magistrates or Crown Court case against your abuser, you will need to let the police know that you would like the prosecutor to apply for one. The Criminal court will decide, based on the evidence, whether a restraining order is necessary and proportionate in the circumstances.
Is a Non Molestation Order the same as a Restraining Order?
While they come from different courts, they essentially do the same thing. One difference can however be the length of the order. Sometimes, the Magistrates or Crown court will make a restraining order, “until further order”. This means the order is in place indefinitely – that is, until someone (either you or the respondent) make a successful application to the court for the order to be changed or discharged.
My simple tip
Follow your gut instinct. If you think you need court ordered protection – you probably do. Make sure you get the protection you need.