NON-MOLESTATION: DRAFT ORDER IGNORES THE LAW

Family Law Act 1996 Part 4: ‘non-molestation order’

The Courts and Tribunals Judiciary has issued a draft non-molestation order which barely complies with the law and manages not to use the word – ‘non-molestation’ or molestation – on which it is based.

Family Law Act 1996 Part 4 s 42(2) enable family court judges to make non-molestation orders in the following terms and for the following individuals:

(2)The court may make a non-molestation order—

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.

Family Law Act 1996 Part 4 defines ‘non-molestation’ as

(1) …. a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.

Orders can be made by judges in the Family Court which may be before circuit judges, district judges or magistrates; but it may also be in the Family Division.

Molestation: a definition

‘Molestation’ is an ordinary English word which has been accepted by the courts in accordance with its Shorter Oxford Dictionary definition since at least 1973 (Vaughan v Vaughan [1973] 1 WLR 1159). It is defined in Home Office documents (see further Family Court Practice 2014 at p 1000).

In the recent case of In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman [2014] EWHC 3136 (Fam), Sir James Munby P defined ‘harassing’ in much the same way as molestation (the word had been used in a children proceedings order to restrain a father):

[29] “Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Courts and Tribunals Judiciary: ignorance of statute

Not content with the terms which Parliament has laid down, and which the common law has explained, the Courts and Tribunals Judiciary has ignored Family Law Act 1996 s 42 and the common law. It has issued a draft order which seems to avoid use of the word ‘molest’ altogether. That part of the draft which deals with the operative part of the order (for the sake of simplicity, and the assistance of litigants in person, it is 5 pages – 23 paragraphs – long) is in the following terms:

Non-Molestation Order – Applicant

  1. The respondent, [YY], must not use or threaten violence against the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.
  1. The respondent, [YY], must not intimidate, harass or pester the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.
  1. The respondent, [YY], must not telephone, text, email or otherwise contact or attempt to contact the applicant, [XX], (including via social networking websites or other forms of electronic messaging) [except for the purpose of making arrangements for contact between the respondent and the children of the family] / [except through [his]/[her] solicitors [insert name, address and telephone number]].
  1. The respondent, [YY], must not damage, attempt to damage or threaten to damage any property owned (whether solely or jointly with another) by, or in the possession or control of, the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.
  1. The respondent, [YY], must not damage, attempt to damage or threaten to damage the property or contents of [the family home]/[insert property], and must not instruct, encourage or in any way suggest that any other person should do so.

Non-Molestation Order – Zonal

  1. The respondent, [YY], must not go to, enter or attempt to enter [the family home] / [insert property] / [any property where he knows or believes the applicant, [XX], to be living], and must not go [within [insert] metres of it] / [along the road(s) known as [insert]], except that the respondent may [go to the property [without entering it]] / [go along the road(s) known as [insert]] for the purpose of collecting the children of the family for, and returning them from, such contact as may be agreed in writing between the applicant and the respondent or in default of agreement ordered by the court.

Non-Molestation Order – Children

  1. The respondent, [YY], must not use or threaten violence against the child[ren] of the family, and must not instruct, encourage or in any way suggest that any other person should do so.
  1. The respondent, [YY], must not intimidate, harass or pester the child[ren] of the family, and must not instruct, encourage or in any way suggest that any other person should do so.
  1. The respondent, [YY], must not telephone, text, email or otherwise contact or attempt to contact the child[ren] of the family (including via social networking websites or other forms of electronic messaging) [except for such contact as may be agreed in writing between the applicant and the respondent or in default of agreement ordered by the court].
  1. The respondent, [YY], must not [between the hours of 08:30 and 16:00] go to, enter or attempt to enter the school premises known as [insert], and must not go [within [insert] metres of it] / [along the road(s) known as [insert]], except [by prior written agreement with the applicant] / [by prior written invitation from the school authorities].

‘Non-molestation’: the broad definition, a bad habit

The more compendious you try to make the definition of ‘non-molestation’ the more a respondent can say: ‘Ah well, what I did isn’t on that list’; whereas Parliament and the common law intend that almost any actionable behaviour between parties can be caught by the term ‘non-molestation’ (see eg Khan v Khan [1995] 2 FLR 221, CA). The judge on the day can then decide whether the behaviour amounts to molestation, whether in his/her discretion an order should be made, and if so what – beyond ‘non-molestation’ – need be incorporated into the terms of the order.

The draftsman of this precedent is remarkably naïve if s/he does not realise these simple, but relatively obvious, truths.  And there is the little matter of Parliament’s will, and the statutory foundation for the jurisdiction (as the House of Lords reminded family lawyers in Richards v Richards [1984] FLR 11). The statute should not, please, be ignored in the drafting of documents like this. It gets litigants – whether represented or not – into very bad habits.

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