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Non-molestation: a definition for 2018?

Date:8 FEB 2018
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Solicitor Advocate
What is ‘non-molestation’? How do family courts, by order, deal with ‘molestation’, as it is now defined in law? What is ‘domestic violence’ or (if different) ‘domestic abuse’? Each of these different terms crop up in different legal contexts; and – absurdly, it may be thought – each may mean something slightly different according to context.

The most recent definition is attempted by a practice direction – ‘domestic abuse’ in PD12J, para 4 (considered later); and this in a practice direction which only applies in children proceedings. Help is at hand from the Court of Appeal; and, as so often, from a judgment of Lord Justice McFarlane. In Re T (A Child) (Non-molestation Order) [2017] EWCA Civ 1889, the court considered the question of a definition of ‘molestation’ (the term used in the Family Law Act 1996 (FLA 1996), s 42). They pointed out – and without any reference to PD12J – that the law (statute and the Court of Appeal) has ‘consistently avoided giving a precise definition’ to ‘molestation’ (see [24]; but see Davis v Johnson (below)).

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Non-molestation order

The ‘non-molestation order’ and the power to make it is defined by FLA 1996, Pt 4, s 42.

'42 Non-molestation orders

(1) In this Part a "non-molestation order"  means an order containing either or both of the following provisions –

(a) provision prohibiting a person ("the respondent") from molesting another person who is associated with the respondent;

(b) provision prohibiting the respondent from molesting a relevant child.

(2) The court may make a non-molestation order –

(a) if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or

(b) if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.'

The predecessor to s 42 was the Domestic Violence and Matrimonial Proceedings Act 1976, s 1 which, as relevant, provided:

'(1) … On an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely, –

(a) a provision restraining the other party to the marriage from molesting the applicant;

(b) a provision restraining the other party from molesting a child living with the applicant…'

The radical aspect of 1976 Act was that it applied equally between married and unmarried couples (s 1(2)); and that it enabled an unmarried partner to exclude her former partner from their home. However, it does not define ‘molestation’, still less ‘domestic violence’ (though that term was part of the title to the legislation). Lord Scarman suggested a definition in Davis v Johnson [1978] UKHL 1, [1979] AC 264. At [1979] AC 264 at 348 he describes the 'mischief' which the 1976 Act was intended to remedy. After reciting s 1 he said:

'I conclude that the mischief against which Parliament has legislated by section 1 of the [1976] Act may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction  actual, attempted or threatened  is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.'

This applies as between people in the same household.

Re T: the scope of  non-molestation under Family Law Act 1996, Pt 4

McFarlane LJ in Re T takes the point appreciably further in his careful explanation of FLA 1996, s 42. This provides for two categories of beneficiaries of an order under s 42(2). He starts his categorisation: ‘[40] The  importance of s 42(2)(b) within the structure of FLA 1996 is not to be  understated’ and explains the ‘jurisdictional avenues’ for the court to make a  non-molestation order:
  • Where application is made for an order has been made by 'a person who is associated with the respondent'; a provision 'very largely limited to adult relationships and it is not expressly focussed upon the protection of any relevant child'.
  • Separately, said McFarlane LJ 'there is the wider jurisdiction to protect "any other party to the proceedings or any relevant child" under s 42(2)(b). The purpose of s 42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings'.

In Re T a non-molestation order under was made under s 42 on application by a local authority against a threatening mother and partner, for protection of a child (aged 10) with foster carers. The case established that a local authority can apply for a non-molestation order under s 42, which then gives to the police if the child’s mother attempted further to remove her from her foster home; and that any interference with the child could be regarded as molestation under FLA 1996. Arrest is  for the criminal offence created by FLA 1996, s 42A(1) (inserted by Domestic  Violence, Crime and Victims Act 2004): ‘a person who without reasonable excuse  does anything that he is prohibited from doing by a non-molestation order is  guilty of an offence’. The police may take action, including, where appropriate  exercising their ordinary powers of arrest.

McFarlane LJ explained the complementary nature of the civil (family) and criminal aspects of FLA 1996:

'[44] The jurisdiction under FLA 1996, Part 4 aims to  protect a victim from molestation, rather than, as would be the case under the  criminal law, to convict and punish a perpetrator. The statutory requirement  [to protect the beneficiary of the order] in s 42(5), which does not make any  reference to the intention of the respondent, is for the court to have regard  to all the circumstances 'including the need to secure the health, safety and  well-being' of the applicant or a relevant child.'

McFarlane LJ emphasises that family judges have ‘consistently avoided a precise definition’ of ‘non-molestation’ ([24]). His survey – which concludes with advice against precise definition (see passage italicised below) – repays repetition:

'[24] The 1996 Act does not contain any definition of "molestation". When called upon to do  so, this court has consistently avoided giving a precise definition. In Horner  v Horner [1983] 4 FLR 50 Ormrod LJ said, at page 51 G : "… I have no doubt that the word 'molesting'…does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court."…

[26] In C  v C [2001] EWCA Civ 1625 Hale LJ (as she then was) held that the granting of a non-molestation injunction was justified in circumstances where the conduct complained of "was calculated to cause alarm and distress to the mother".

[27] In the  decades that have followed those judicial utterances those sitting in the  Family Court have, on a day by day, case by case, basis, deployed good sense  and judgement in determining whether or not particular conduct amounts to  ‘molestation’. In my view this court  should continue to be very wary of offering any further precision in the  definition.' [emphasis added]

‘Domestic violence’ and legal aid; ‘domestic abuse’ and PD12J

The only statutory definition of ‘domestic violence’ is in the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), Sch 1, para 12(9) (legal aid for victims of violence in family proceedings) (and a search of ICLR site reveals no relevant definitions outside housing cases). Para 12(9) provides:

'"domestic violence" means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.'

Were the Re T foster parents tempted to apply to join in their foster child’s care proceedings, had they been given party status and had they been financially eligible, they would have stumbled at the final fence. They would have come within FLA 1996, s 42(2)(b) as explained by McFarlane LJ but would not have been ‘individuals who are associated with each other’ for LASPO purposes. As para 12(7) states ‘(b) “associated” has the same meaning as in FLA 1996 s 62)’; and as Re T explains, s 42(2)(b) is the bit of s 42 which covers those who are not ‘associated’ within the terms of FLA 1996, s 62.

PD12J offers a definition of ‘domestic abuse’ in the context of children proceedings (para 3), which is neither statutory nor part of the common law. The extent of its authority is very limited – a practice direction comes far below statute, House of Lords and Court of Appeal in the precedent pecking order – and as will be seen it only does half the job which s 42(2) requires for a non-molestation order:

'"domestic abuse" includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members [an expression which is considered later] regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.'

In Re  T, McFarlane J makes no reference to PD12J. By contrast in a child arrangements order (‘contact’) case, Re J (Children) [2018] EWCA Civ 115, he quotes extensively from the practice direction. If the Ministry of Justice ever produce a new domestic violence bill, perhaps any question of a definition of domestic violence – or domestic abuse? – is something to which they will address their minds.

Non-molestation: the modern law

So where does this leave someone who has been the subject of molestation in a domestic context – where ‘associated with the [alleged assailant]’ (per FLA 1996, ss 42(2)(a) and 62) – or otherwise in family proceedings (FLA 1996, s 42(2)(b); Re  T)?

The common law is what was explained by Lord Scarman in Davis v Johnson and as refined and clarified in respect of s 42(2) by McFarlane LJ in Re T. PD12J does nothing which case law (ie common law) does not do; and it seeks to narrow the scope of s 42(2). It appears to be intended only for contact proceedings; but parties and practitioners will find that s 42(2) as explained in Re T provides a much wider canvass for assisting those who are subject to domestic or other abuse.

Now it remains only to align the legal aid provisions of LASPO, Sch 1, para 12 with what the Court of Appeal says FLA 1996, s 42 really means.