Non-molestation orders and conviction for breach
Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson  UKHL 1,  AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article
FLA 1996 s 42, as relevant, reads
42 Non-molestation orders
(1) In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –
(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;
(b)provision prohibiting [B] from molesting a relevant child [(C)].
(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] with [B]; 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 [C] even though no such application has been made.
Offence for breach of non-molestation order
Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:
42A Offence of breaching non-molestation order
(1) A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….
(5) A person guilty of an offence under this section is liable –
(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….
Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).
Conviction on a substratum of findings to a civil standard of proof
Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid. B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.
If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest  EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal)  1 FLR 773.
McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura  EWHC 3633 (Fam),  2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan  EWCA Civ 586,  1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:
 The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.
The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:
 … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:
(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;
(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;
(c)the burden of proof is at all times on the applicant; and
(d)the respondent cannot be compelled to give evidence.
The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak  1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:
 … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.
The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:
3 Everyone charged with a criminal offence has the following minimum rights –
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…
(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…
Engels v Netherlands: ‘legal assistance of his choosing’
Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:
 The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).
(b) On the existence of a “determination” of “civil rights”
 Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).
As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.
Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3
The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?
This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:
 … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.
And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?
If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.
Legal aid and the non-molestation order
The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors  EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.
But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.
I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.