How do I defend a non-molestation order? Often a non-molestation order is firstly made on a ‘without notice’ basis and the respondent will find out after the order has been made (interim order). This can either be made at a hearing where only the applicant and their legal representative if they have one attend. The court may also determine the application without a hearing (‘on the papers’).
Where the court makes an order in either scenario, the order will be sent to the respondent together with a copy of the application and the witness statement which provided the court with the evidence on which the court made its decision. If the order was made at a hearing where the applicant had a lawyer present, then the respondent can request a note of what was said at the hearing.
When the respondent receives the application, whether an order has been made or not, they will be informed of the date when the court will next consider the application. It is important that the respondent carefully reads the written statement in support of the application and notes down their version of events. The respondent must think about whether there is anyone who could have witnessed the incidents alleged and if so whether that witness would be prepared to write a statement to the court to confirm what they saw or heard. The respondent should also consider whether they have any evidence such as text messages, photographs or other material which would either show that what the applicant has said is not true, or that it should be looked at in a different light.
If the original allegations in the application do not include allegations of physical violence it is likely that at the return hearing the respondent will be offered the opportunity to give an undertaking instead of taking the case to trial. An undertaking is a solemn promise to the court to do or not to do something which can be accepted where the allegations do not include physical abuse.
If the applicant accepts and the court endorses that the application can be settled with undertakings, then that ends the case. If the person who makes the undertakings breaks these the family court may punish the person with a sentence of up to two years in prison as a ‘contempt of court.’ The respondent should think carefully about giving undertakings. There are definite advantages to this option.
- The undertakings would be on a ‘no admissions, no findings’ basis which means that any risk that the court would make any findings against the respondent is eliminated.
- An undertaking is between the respondent and the court and although there are still penalties for breaching the undertaking, there is no risk of a criminal conviction for the breach.
- The matter would then be finished that day. If the case goes to trial there may be a considerable delay, sometimes of many months and an interim order would likely be made to last until the trial in any event.
If the respondent decides to challenge the application in its entirety, they must attend court to inform them of the challenge and the court will set a date for the trial. The court will ask the parties to provide all the evidence they want the court to consider at the trial. The respondent should consider whether he may be supported in his case by getting records or information from other parties and if so to ask the court to make directions for:
- disclosure of police records;
- disclosure of information from social services;
- either the applicant and /or the respondent to provide their GP and/or hospital) records;
- disclosure of phone records to be relied upon;
- witness statements to be filed to include that from any additional witnesses. The court may allow the applicant to provide a more detailed statement as often the statement attached to the application is a summary. The respondent will then be allowed to respond; and
- a final hearing to decide the application once all the information has been provided.
At this hearing, the judge will consider any adjustments that would be needed to make either party’s participation effective. The court will consider ‘special measures’ which may include directing the alleged victim to be provided with a separate conference room while at court, screens to be provided inside the courtroom and staggered entrance and exit times for the parties so that do not meet each other. Whilst it may appear that if the court directs such measures that they are taking the applicant’s side, that is not the case, it is simply to prevent the applicant from being able to complain that she is unable to give her evidence properly as she is intimidated being so close to the respondent.
To succeed in getting an order at the final hearing, the applicant must persuade the court that the respondent has acted in a way that amounts to molestation. Technically, the respondent doesn’t have to prove anything. Judges are impartial and they will have to decide on the balance of probabilities as to who is most likely to be telling the truth. For that reason, if the respondent can find any independent evidence which corroborates I.e. confirms their account this is likely to help persuade the judge that their account is to be preferred.
You will can find more information on domestic abuse and the law on this Resolution website.