Non-molestation orders are a form of protection available to individuals at risk of abuse from those close to them. The objective of such an order is to prevent an individual, typically an ex, from using or threatening physical violence and causing harassment or instructing anyone else to do so. But what if you believe the order should not have been made? Can a non-molestation order be removed? And if so, in what circumstances? In this article, we answer these questions and more.
Because non-molestation orders can be granted on an emergency basis without any notice being given to the respondent (the person defending/disputing the application), they will not have had the opportunity to give the court their version of events. The problem here is that, sometimes, applicants can paint a misleading picture which leads to the non-molestation order being granted. Even when evidence can be provided by the respondent, which contradicts the applicant’s side of the story.
If you are the respondent, you may object to being prevented from committing certain acts, which you say you did not do or feel the terms of the order restrict your civil liberties. However, it is possible to apply to discharge (remove) a non-molestation order.
What if my ex lies so they can get a non-molestation order?
Sometimes, applicants exaggerate or lie about their situation to obtain a non-molestation order. Romantic relationships are complicated and breakdowns even more so.
If the order has been granted on an emergency basis, you may not have had the chance to present your side of the story, which means the court can sometimes hear a distorted perception of events when the application is first made.
Perhaps the applicant has set out your bad behaviour, but has failed to mention their own role in what has taken place. Or they are exploiting the non-molestation order process for other motivations, such as an ongoing dispute regarding the children. Fortunately, respondents have a legal right to challenge the order and have their views heard by the court. If a non-molestation order has been made against you, you have the right to apply to court for it to be discharged (removed).
What evidence do I need to discharge a non-molestation order?
If the order was made without notice, there will usually only be a short period of time between that and the next hearing. The applicant will have provided their statement setting out details of the allegations they are relying on alongside their application which should be served on you together the with order. You, or your solicitor, if you have one, will draft a statement setting out your version of events and answering the allegations made. Evidence that would be accepted includes:
- Texts
- Emails
- Screengrabs
- Medical records
- Police reports/files
- Voice recordings
- Bank statements
- Statements from witnesses who have observed the incidents referred to and have a different version of events
- Any other relevant information/documentary evidence that backs up your version of events
How do I make an application to discharge a non-molestation order?
Contesting a non-molestation order is an extremely sensitive matter. Understandably, the courts take domestic abuse injunctions seriously. If you find yourself in this situation, the support and advice of a specialist lawyer will prove invaluable.
If the court has exercised its power to grant a non-molestation order without notice, it must give the respondent “an opportunity to make representations relating to the order as soon as just and convenient at a full hearing”.
Where an order has been made in this way, when you receive notification, it will contain a further date for another court hearing. You can either wait for this hearing and explain your position as to why the order should not be in place, or, alternatively, make an application to discharge the non-molestation order as soon as you are notified.
The application to discharge the non-molestation order will be given a hearing date, where both parties will be invited to present their case. At the hearing, the court listens to both parties and decides whether to grant a final non-molestation order, or discharge the interim order. If other witnesses have relevant evidence to add, the court may adjourn the hearing and make directions for the filing of witness evidence.
Alternatively, the court has the power to accept an undertaking from any party in the proceedings.
It is important to remember that, whilst contesting an order, it remains active. Therefore, it is important to bear in mind that the terms of the order should continue the be adhered to. Irrespective of whether or not you believe the order is justified, until the provision of counter evidence, it must still be followed until it has been dismissed by further order of the court.
What is an undertaking in non-molestation proceedings?
An undertaking is a promise made to the court. However, it does not have the same power as an order because no power of arrest can be attached to it. If the court finds that the respondent has used or threatened violence against the applicant or any relevant children, an undertaking may not be accepted. This is because the court believes a non-molestation order is necessary for the protection of the applicant and child to ensure any breach is punishable as a criminal offence.
The undertaking will set out how you intend to behave in the future and will usually have the same wording as the non-molestation order. Providing an undertaking does not necessarily mean you admit the applicant’s allegations, but is made simply to avoid the stress and cost of going through a court hearing where both parties will have to discuss allegations of domestic abuse.
Is legal aid available for disputing a non-molestation order?
When disputing a non-molestation order, legal aid will not be available in the vast majority of cases. The costs, if paying a solicitor on a private client basis, will depend on the precise circumstances of the case, preparation and gathering of evidence, and representation at hearings.
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