This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
What are the requirements for a non-molestation order? We explain the legal tests, the evidence needed to support an application, and how the court assesses risk under the Family Law Act.
A non-molestation order is a protective court injunction under Part IV of the Family Law Act 1996, intended to prevent a person from molesting another person or a relevant child. The order can prohibit threats, harassment, intimidation, unwanted contact or violence by the respondent. Although it is a civil order, breaching it is a criminal offence, enforceable by the police and prosecutable in the criminal courts. The decision to grant such an order is rooted in specific legislative provisions and judicially developed legal criteria. This article explains the legal test and practical considerations that courts apply when deciding whether to make a non-molestation order in England and Wales.
Statutory Framework
The statutory basis for non-molestation orders is found in section 42 of the Family Law Act 1996. Section 42 empowers the family court to make an order prohibiting a respondent from molesting an associated person or a relevant child. The Act does not define “molestation”, but it is interpreted broadly to include behaviour sufficiently serious or persistent to justify court intervention.
Section 42(5) sets out the key statutory test: the court must have regard to all the circumstances of the case, including the health, safety and wellbeing of the applicant and any relevant child, when deciding whether to make an order and in what terms.
Core Legal Criteria
1. Evidence of Molestation
To justify an order, there must be evidence of molestation by the respondent. Case law interprets molestation to mean conduct of such a degree that it calls for the intervention of the court. “Molestation” can include:
- Actual violence or threats of violence
- Harassment, pestering, repeated unwanted contact
- Intimidating, controlling or abusive behaviour that causes alarm or distress
Judicial authorities have emphasised that there does not need to be intent to molest; conduct that realistically causes fear, alarm or distress can suffice if it meets the threshold for court intervention.
2. Need for Protection
The applicant (or relevant child) must need protection from the respondent's behaviour. This means that the behaviour alleged is not merely upsetting or distressing but poses a real risk to the applicant's physical or psychological wellbeing. Evidence of recent or ongoing incidents, patterns of abusive behaviour or risk of repeated conduct strengthens the case for protection.
Personal distress alone, without evidence of conduct that objectively justifies legal intervention, is usually insufficient. The court looks for behaviour of a nature or degree that outweighs the normal vicissitudes of interpersonal conflict.
3. Balance of Probabilities
The court applies the civil standard of proof: the judge must be satisfied on the balance of probabilities that the respondent's conduct amounts to molestation and that making an order is appropriate to prevent further harm. It is not necessary to prove wrongdoing beyond reasonable doubt, as in criminal cases, but the evidence must be credible and persuasive.
Judges consider all material circumstances, including witness statements, documentary evidence (such as messages, police reports or medical records) and the wider context of the relationship and behaviour complained of.
Orders Made With or Without Notice
With Notice
In a typical application, the respondent is notified of the proceedings and given an opportunity to attend court and respond. In these cases, the court must consider both sides of the dispute and decide whether the criteria for making a non-molestation order are met on the evidence.
Without Notice (Emergency) Applications
A non-molestation order can, in exceptional cases, be made without notice to the respondent where there is a serious risk of harm if the respondent is first informed. The court has broad but cautious powers to grant such an order in urgent situations.
Judicial guidance emphasises that without notice orders should only be granted where:
- There is a significant risk of harm if the order is not made immediately
- The applicant would be deterred or prevented from applying if the order were not made without notice
- The applicant's evidence clearly demonstrates that exceptional circumstances justify not notifying the respondent before the order is made
The court must balance the need for immediate protection against the respondent's right to a fair hearing.
Proportionality and Tailoring of Orders
When making a non-molestation order, the court must ensure that the terms are proportionate to the risk being addressed. Proportionality requires that the order:
- Addresses the specific harmful behaviour alleged
- Does not unnecessarily interfere with the respondent's legitimate rights
- Includes clear, enforceable restrictions on contact, proximity or behaviour
Orders can prohibit all direct and indirect contact, attendance at specified locations (such as the applicant's home or workplace), and other conduct that is reasonably necessary to protect the applicant and any relevant child.
Relevant Child Considerations
If a relevant child is named in the application (usually a child who lives with or might reasonably be expected to live with either party), the welfare of the child is a paramount consideration. The court must assess whether the order is necessary to safeguard the child's wellbeing, taking into account any direct harm or secondary effects caused by abusive behaviour.
Duration of Orders
Non-molestation orders are usually granted for a fixed period, commonly six to twelve months, but the court has discretion to set a longer or shorter duration based on the facts. The court may also attach conditions or review provisions to ensure ongoing protection as required.
Interaction With Other Legal Remedies
A non-molestation order is one of several protective tools available in domestic abuse cases. Others include:
- Domestic Violence Protection Orders (DVPOs): short-term protections issued by magistrates following police application.
- Protection injunctions under the Protection from Harassment Act 1997: for harassment that may not fall within the scope of associated persons.
Understanding the distinct legal tests and applications for these remedies can help applicants and advisors choose the most appropriate form of protection.
Final Thoughts
The legal criteria for granting a non-molestation order are grounded in common law and statutory provisions under the Family Law Act 1996. The key elements are:
- Evidence of molestation by the respondent
- Need for protection of the applicant or relevant child
- Judicial satisfaction on the balance of probabilities that intervention is necessary
- Careful consideration of proportionality and context
In urgent cases, orders may be made without notice in exceptional circumstances, but the court requires clear evidence of risk to justify such orders. Understanding these criteria helps applicants prepare robust cases and supports solicitors in effectively advising clients on protective remedies.
