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Sexual Offences Articles

Breach of Non-molestation Order sentencing guidelines

If you have been served with a non-molestation order, you may be wondering what the penalties are if it is breached. When the non-molestation order is made as a standalone application, rather than inside ongoing family proceedings, the person who applies for the non-molestation order is known as the applicant. The person who receives the order is known as the respondent.

This article is focussed on individuals who are the respondent to a non-molestation order. Receiving such an order can be a distressing moment, especially where you dispute the allegations made by the applicant. Luckily, you do have options to challenge the order. This article looks at the standard of proof for obtaining a non-molestation order, and whether you have to pay a court fee to obtain one. We look at what a non-molestation order can do and whether it forms part of the criminal record of the respondent. We also look at what happens where one or both parties breach the order. We explore the difference between a restraining order and a non-molestation order. We look at the penalty for breaching a non-molestation order, and the steps that you can take to get a non-molestation order removed.

Do you need evidence for a non-molestation order?

In order to obtain a non-molestation order, the court must be satisfied on the balance of probabilities and based on the evidence that the abusive behaviour that the applicant complains of took place.

At the initial hearing where the applicant asks the court to grant the order, usually the respondent is not present. This means that the court has the challenging job of making an initial determination on the facts when only one of the parties is present.

Evidence – such as messages from messaging applications – can be appended to the applicant’s witness statement. If an order is granted after the first hearing on a ‘without notice’ basis, this is known as an ‘interim’ order. All too often, when a respondent receives the applicant’s affidavit, they may dispute the truth of their allegations. The respondent will be notified of the return date, which is a court date where both parties can attend court.

This is the respondent’s opportunity to challenge any allegations which the applicant has made that the respondent disputes. The respondent can attach any evidence that they wish to rely upon to their witness statement.

When making a final determination on whether to grant a non-molestation order, the court will use the same test to reach findings of fact on what took place – the balance of probabilities. This means that the court will look at whether it is more likely than not that the abusive behaviour complained of took place.

Do you have to pay for a non-molestation order?

There is no court fee for applying for a non-molestation order. As such, where an applicant does not use a lawyer, other than the costs of transport to get to the court and any missed work, they will not have to pay to obtain the order.

However, where the applicant instructs a solicitor, if they are not eligible for legal aid, they will have to pay the solicitor’s fees. As a respondent, you do not have to pay to oppose the order, unless you choose to instruct a solicitor, in which case you will be liable for solicitor’s fees. Instructing a solicitor may sound expensive, but many firms will do non-molestation order cases on a fixed fee agreement, and it is a good way to help ensure that you obtain a fair outcome to the court case. In some circumstances where the court declines to grant a final protection order, they may award the respondent costs which would mean that the applicant has to pay the costs of the respondent’s legal representation.

How powerful is a non-molestation order?

A non-molestation order is powerful in the sense that there is a power of arrest attached to it. This means that if it is breached ‘without reasonable excuse’, you could be arrested. When a non-molestation order is issued, a copy will be sent to the applicant’s local police station.

If the applicant reports that the order has been breached, the police will be able to confirm the existence of the order before taking enforcement action. The police will attend the scene of the alleged breach and determine whether a breach has taken place. If you are found to have breached the order, you will have committed a criminal offence. Depending on the circumstances, you could be arrested, or you could be separated from the other party and summoned to appear at the Magistrates’ Court to answer to the breach.

Matters can get complicated where both parties are found to have breached the order – for example where the respondent has breached a requirement to stay away from the applicant’s house and the applicant has participated in this breach by inviting them over. Or where the respondent is prohibited from contacting the applicant, and both parties have been communicating with each other. In these circumstances, the respondent can argue that they have a reasonable excuse for breaching the order.

Is a non-molestation order a criminal record?

A non-molestation order is not a criminal record. Unlike a criminal conviction that must be proven beyond reasonable doubt, a non-molestation order is made on the civil standard of proof, the balance of probabilities. However, if you breach a non-molestation order without reasonable excuse, you could receive a conviction or a caution, which would result in a criminal record.

What happens if a non-molestation order is breached?

If a non-molestation order is breached, and the police are informed, this could result in the respondent or both parties being arrested. The police will attend the scene to assess whether a breach has taken place. If the police suspect that a breach has taken place, you will be arrested or summoned to the Magistrates’ Court to answer to the charge of breaching the order. The process that must be followed if a non-molestation order is breached is set out at 42A of the Family Law Act 1996. You cannot be prosecuted under 42A as well as for contempt of court for the same breach.

What’s the difference between a restraining order and a non-molestation order?

A non-molestation order is applied for by the person who feels that they need protection, and is made in the family court. Whereas a restraining order is handed down by the judge in the criminal court. A restraining order can be made at the outset of criminal proceedings, or at the conclusion of the trial either accompanying a conviction or following an acquittal. A restraining order is usually made to prevent the defendant from threatening or intimidating a witness in the case. Once in place, restraining orders and non-molestation orders have a similar effect.

What is the penalty for breaching a non-molestation order?

If you breach a non-molestation order, the maximum sentence is a 5-year custodial sentence. However, if the case is heard in the Magistrates’ Court the maximum custodial sentence is 12 months’ imprisonment. The usual offence range is between a fine and 4 year’s custody. When deciding what sentence to hand down, the court will consider the culpability of the offender, and the harm caused by the breach. Culpability will be decided based on how serious and persistent a breach took place. Meanwhile, harm will be judged by the level of harm and distress that has been caused.

From there, the court will consider aggravating and mitigating factors that are relevant to the defendant’s personal circumstances. If you have previously breached a restraining order or a non-molestation order, this will be an aggravating factor.

More details can be found in the guide from the Sentencing Council here.

Can you get a non-molestation order removed?

Yes, where an interim non-molestation order is made without notice, you can attend the return date and make submissions for why no final order has been granted.

When a final order has been granted, you can apply to court at any time and seek to discharge it. You will need to show why it should no longer be in place. This will usually involve putting forward new evidence that has not already been considered by the court, to support your case for why the order should be removed. Say for example, you and the applicant have reconciled your relationship and are now cohabiting again. This could be a reason why there should no longer be a non-molestation order in place.

Where to get further help?

If you are the respondent to a non-molestation order, and you wish to challenge the order, or you are facing a criminal prosecution for breaching it, instructing a solicitor could be the best thing that you do. At Stuart Miller Solicitors, we understand the stress that having domestic issues heard in court can bring. Our experienced and non-judgmental solicitors will listen carefully to your instructions, and work closely with you to achieve the best possible outcome. Contact us for a consultation today.

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