‘Exceptional Circumstances’ – A reminder of the Court’s approach to without notice Non-Molestation Order Applications

‘Exceptional Circumstances’ – A reminder of the Court’s approach to without notice Non-Molestation Order Applications

Within the recent judgement of DS v AC [2023] EWCF 46, Mrs Justice Lieven provided a helpful reminder to practitioners and Applicants alike of the circumstances in which the Court will hear a without notice Non-Molestation Order application. Namely, a without notice order should only be made in exceptional circumstances where there is a risk of harm. The reasoning for the reminder provided in the judgement is that there is “no doubt” that too many applications are being made where there is no reasonable basis to grant the application without notice [para 24].

 Without Notice vs With Notice

Before looking at what the Court would deem as exceptional circumstances, it is first necessary to remind ourselves of the difference between a “without notice” and a “with notice” application for a Non-Molestation Order.

If an application for a Non-Molestation Order is made with notice, the Respondent will be informed of such an application prior to the Court making any order. A notice of hearing will likely be issued following an application, inviting both parties to attend Court. At such a hearing, the Court will consider the Applicant’s application with both parties being present.

However, if an application for a Non-Molestation Order is made without notice, the Court may grant an order before a Respondent has even been informed of an application being made. In such cases, the court will then usually list a return hearing, inviting both parties, once the Respondent has been served with the order. In determining whether it will exercise its power to hear an application without notice, the Court will have consideration to all circumstances, including:

  1. Any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
  2. Whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
  3. Whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved in effecting substituted service.

Why are the Courts concerned?

In the event that a without notice Non-Molestation Order is granted, the Respondent can be made subject to stringent terms before being invited to Court. In the case of R v R [2014} EWFC 48, Peter Jackson J compared such extra injunctive provisions as serious infringements of a person’s freedom of action, which should not be taken lightly.

As a result, the Court has to perform a balancing exercise; balancing the protection of the Applicant against a potentially unjust limitation on the personal freedoms of a Respondent faced with the without notice Non-Molestation Order.

Therefore, in the judgment of DS v AC, Mrs Justice Stevens emphasised that a without notice application should only be made in exceptional circumstances where there is a significant risk of harm.

Exceptional Circumstances

The judgement of DS v AC is not to say that an Applicant cannot apply for a without notice Non-Molestation Order. The case instead serves as a reminder of the circumstances in which a without notice Non-Molestation Order application would be appropriate.

In determining whether a Non-Molestation Order can be made without notice, the Court must be satisfied that there is a risk of significant harm to the Applicant as a result of the Respondent’s molestation.

It is important to note that molestation does not only refer to violence or threats of violence but can also include behaviours such as harassment and coercive behaviour. Furthermore, the Respondent need not actively intend to molest the Applicant. However, the Court will instead take note of the alarm, distress or harassment experienced by the Applicant due to the Respondent’s molestation. The Court will also determine whether the nature or degree of the Respondent’s conduct justifies the intervention of the Court.

Practical Implications

When looking to apply for a without notice Non-Molestation Order, DS v AC makes it clear that it is paramount that the Applicant’s witness statement expressly stipulates why the application is exceptional and addresses the nature of the significant risk alleged.

Whilst Mrs Justice Lieven’s judgement did not expressly refer to the impact of the lapse of time between the most recent incident and the without notice application being made, it is worth nothing that in the case of DS v AC, the time period of three weeks without contact from the Respondent meant that a without notice order would have been “wholly inappropriate on the facts”.

How we can help

At National Legal Service, our mission is to make a positive impact in people’s lives.

We keep up to date with the most recent changes in family law, to obtain better outcomes for our clients and adjust our practice to ensure our clients obtain the quickest and most effective protection from their abusers. We have tailored our drafting of applications and statements to reflect the changing case law and apply for without-notice Non-Molestation Orders where appropriate.

We are here to support you through the whole process, and to help you gather all the information and evidence that you may need to obtain the protection that you need.

If you are a victim of domestic abuse, please call us in confidence and we can discuss your options in confidence.

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