Are non-molestation orders being used fraudulently?

The Guardian has recently reported that the charity, Families Need Fathers, are alleging non-molestation orders are being exploited and used fraudulently, often by mothers, to obtain legal aid for private family disputes relating to children.

What is a non-molestation order?

A non-molestation order, for those unfamiliar with the term, is an order issued by the court that can prevent a partner or former partner from harming you or your children. The definition of harm is wide and can include physical violence or the threat of violence, harassment, intimidation, psychological and emotional abuse.

Before deciding whether to grant an order, a judge will consider all of the circumstances of the case but in particular securing the health, safety and wellbeing of the applicant and any children. If a non-molestation order is breached then it carries with it a power of arrest and the risk of imprisonment for up to five years.

Non-molestation orders are granted on the civil, not criminal, burden of proof i.e. a judge has to be sure on the balance of probabilities that the harm took place rather than being sure beyond all reasonable doubt.

Therefore, it is possible for someone to be found not guilty of assault or threats to harm within criminal proceedings but still be found guilty within civil proceedings.

Controversy surrounding the use of non-molestation orders in family disputes

The Ministry of Justice has reported that the number of non-molestation orders issued each year has increased by more than 30% from 20,000 to 26,000 during the past five years since the changes to legal aid which curtailed access to legal aid for many parties to family proceedings, with an exception being those where there has been domestic violence (certain criteria needs to be met, which is not covered here).

The Head of Families Need Fathers, Jerry Karlin, argues that some parents seek non-molestation orders, without real justification, to secure legal aid and that we have a situation where “the weaponisation of court procedures by angry and vengeful parents in encouraging false allegations and fuelling conflict between separating couples.”

They would like to see more checks and balances in place to expose exaggerated or bogus allegations and to discourage such behaviour.

It is unclear what checks and balances could be put in place to assist the courts in deciphering fact from fiction which is why many cases proceed to a finding of fact hearing so that a judge can hear evidence from both parties.

The Chief Executive of Women's Aid, Katie Ghose, disagrees with Families Need Fathers and believes that the increase in non-molestation orders is related to a greater awareness of domestic abuse and the measures that can be employed to combat it.

Ghose goes on to say that the fact that the police are recording record numbers of domestic abuse incidents and offences means we would expect to see the number of non-molestation orders being applied for to increase, as more victims are reporting incidents.

Non-molestation orders are a vital tool in the armoury of any family lawyer when it comes to protecting clients suffering harm.

It is unfair to suggest the majority of applicants are exploiting the system, but in our experience, some parents are taking advantage of the process as they are unable to afford legal fees to fund private children disputes otherwise.

Whilst no one wants to see the number of non-molestation orders increasing, the orders are made by judges to preserve the health, safety and wellbeing of the applicant and any children. Unless the government provides access to legal aid for separating parents, then this does appear to be an unfortunate by-product of the failed reforms.

Linzi Perriman is a Solicitor in the family law team

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