The court’s intervention is often required where allegations of domestic abuse are raised between parties. Two of the most frequently utilised remedies in domestic abuse cases are non-molestation orders (‘NMO’) and occupation orders (‘OO’).
Both NMO and OO are types of injunction. Both have the enforcement jurisdiction of the civil courts, including the option of committal proceedings (although breaching a NMO also carries with it a discrete criminal offence of its own, triable by the criminal courts). This article will give a concise overview of these two orders.
The definition of NMO is set out within section 42 of the Family Law Act 1996 (‘the FLA’):
42(1) In this Part a 'non-molestation order' means an order containing either or both of the following provisions –
- provision prohibiting a person ('the respondent') from molesting another person who is associated with the respondent;
- provision prohibiting the respondent from molesting a relevant child.
The term 'molesting' is not defined by the FLA. However, the word ‘molest’ has been considered synonymous with 'pester' (see Vaughan v Vaughan  1 WLR 1159, CA – where the court considered the definition of molestation in the Shorter Oxford Dictionary, namely 'to cause trouble; to vex; to annoy; to put to inconvenience'). It includes conduct which does not amount to violent behaviour (Davis v Johnson  AC 264, 334, HL) and applies to any conduct which can properly be regarded as constituting such a degree of harassment as to call for the intervention of the court (C v C  EWCA Civ 1625).
In order to apply for an NMO, you need to be an ‘associated person’, within the meaning of s.62(3) FLA (as amended by the Domestic Violence Crime and Victims Act 2004).
The legal test
The test is set out in s.42(5) FLA and requires the court to have regard to all the circumstances of the case, including the need to secure the health, safety and well-being of the applicant/relevant child.
The following principles should be considered when deciding whether to grant an NMO:
- There must be evidence of molestation (C v C (Non-Molestation Order: Jurisdiction)  1 FLR 554, FD);
- The applicant (or child) must need protection; and
- The judge must be satisfied on the balance of probabilities that judicial intervention is required to control the behaviour which is the subject of the complaint (see for example C v C  EWCA Civ 1625).
Under s.42(A)(1) FLA, the breach of a NMO is a criminal offence. Specifically, it is an offence where a person without reasonable excuse does anything prohibited under a NMO. The respondent cannot be convicted, however, if he/she is unaware of the existence of the order, especially when the order was made without notice and personal service had not been effected. The police can arrest a person suspected of committing a breach offence, with prosecution being dealt with by the CPS. It is a triable either way offence, with both the Magistrates and Crown Courts having jurisdiction.
Alternatively, it is still possible to pursue recourse through the civil courts – see the section below on breach of OO.
Whilst a NMO aims to help the victim from being pestered, harassed or molested, it does not deal with the issue of who can occupy the family home. An occupation order offers that protection. There are numerous subcategories of OO, the definition of which is set out within several sections of the FLA, specifically ss.33, 35, 36, 37 and 38.
OO can be both declaratory and regulatory. A declaratory order is an order which declares, extends or grants the right to occupy, whilst a regulatory order is an order which controls or restricts existing rights to occupy all or part of the family home. For example, regulatory orders can:
- Allow the applicant to remain in occupation of the family home;
- Require the respondent to allow the applicant to enter and remain in the family home;
- Regulate occupation of the family home;
- Require the respondent to leave or occupy part of the family home;
- Prohibit, suspend or restrict the respondent’s right of occupation (not under ss.37 and 38, however); and
- Exclude the respondent from a defined area (in which the family home is included).
The specific order sought depends on whether the applicant has a right to occupy the family home and, if not, the status of their relationship with the respondent:
Section 33: Where the applicant is entitled to occupy the property by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving them the right to remain in occupation. The applicant is also eligible to apply under s.33 if they have home rights in relation to the property, e.g. where the applicant is the sole or joint owner, or the tenant/joint tenant of the property.
Section 35: Where the applicant is a former spouse or former civil partner with no existing right to occupy the property.
Section 36: Where the applicant is a cohabitant/former cohabitant with no existing right to occupy the property.
Section 37: Where neither the applicant or their spouse or civil partner is entitled to occupy the property.
Section 38: Where neither the applicant nor their cohabitant/former cohabitant is entitled to occupy the property.
A significant number of applications for OO are made under s.33 and therefore that will be the focus for the rest of this section.
The first requirement for a s.33 application is that the applicant needs to be entitled to occupy the family home. This can be established by a legal or equitable interest; a contractual right e.g. tenancy agreement; or home rights under s.30 FLA.
Secondly, both the applicant and respondent need to be ‘associated persons’ (within the definition of s.62(3) FLA), and the family home either must have been or must have been intended to be their home.
Note: under s.33, these two requirements only apply for regulatory orders. There is no need to apply the test for declaratory orders as the applicant already has the right to occupy.
The legal test
If the eligibility requirements are met, the court then considers the legal test. This is a two stage test: i) the ‘balance of harm test’; and ii.) the ‘discretionary test’:
- The ‘balance of harm test’ is set out in s.33(7) FLA. Firstly, the court should consider whether the applicant/relevant child is likely to suffer ‘significant harm’ (within the meaning of s.31 Children Act 1989) because of the respondent’s conduct should the order not be made. If the answer to the above question is yes, the court must make an order, unless the respondent/relevant child is likely to suffer significant harm (in the event the order is made) which is as great as, or greater than the harm attributable to the respondent’s conduct.
- The ‘discretionary test’ is set out in s.33(6) FLA. Should the balance of harm not fall in the applicant’s favour, the court may make an order using their discretion. The court should consider all the circumstances, including:
- The housing needs and resources of the parties and children;
- The financial resources of the parties;
- The likely effect of an order (or lack of) on the health, safety and wellbeing of the parties and children; and
- The conduct of the parties in relation to each other or otherwise.
Useful precedents for OO
Beyond the aforementioned statutory provisions, the following case law precedents are helpful:
Chalmers v Johns  1 FLR 392 – For s.33(7), the court must consider the existence of significant harm (within the meaning of s.31 Children Act 1989) first. Only if not relevant the court must consider the s.33(6) factors. Here, the court made clear that the significant harm must be some sort of exceptional harm – a ‘slight case’ of domestic abuse is not sufficient to establish significant harm.
G v G  3 FCR 53 – The correct approach to s.33(7) is to assess the effect of the conduct on the applicant or any relevant child, rather than to concentrate on the intention of the respondent. Orders excluding a party with a right to occupy from the home are draconian and should only be granted in ‘exceptional circumstances’ if there is no significant harm.
Grubb v Grubb  EWCA Civ 976 – For an exclusion order under s.33(6) to be made, violence is not required to make the circumstances ‘exceptional’.
Dolan v Corby  EWCA Civ 1664 – Confirmed the above approach and, although occupation orders excluding the respondent under s.33(6) criteria are exceptional, there is no need for violence to be found.
Re L (Children)  EWCA 721 – S.33(6) is broadly drafted, and requires court to weigh up all circumstances and grant an occupation order where those are ‘extreme’. ‘Extreme circumstances’ do not however require violence.
A breach of an OO is considered to be a breach of an injunction/undertaking (as is the breach of a NMO), and is enforced by Committal proceedings (per Part 37 Family Procedure Rules 2010). There are three ways of commencing committal proceedings:
- Making an application for committal under Part 18 FPR, alongside an affidavit;
- Arrest under Warrant of Arrest – see s.47(8) FLA for both OO and NMO (note, this is the appropriate course of action if choosing to seek a civil remedy for a breach of a NMO); and
- Arrest on Power of Arrest s.47(3) – This only applies to OO. Under s.47(2) FLA, the court on making an OO shall attach a Power of Arrest if the respondent has used or threatened violence, unless satisfied the applicant has adequate protection without.
Committal proceedings, whilst taking place in the Family Court, will follow a similar procedure to the criminal trial, using the criminal burden and standard of proof. If committed to prison, the respondent can face a 2-year maximum fixed term custodial sentence (likely suspended). The court can also issue a fine or a fresh injunction.