Welcome to another week.
A recent article on Non Molestation Orders by Jason Hadden MBE, has highlighted some serious concerns with the court system, and these Orders.
Non Molestation Orders are a form of injunction designed to protect victims of domestic violence from being harmed or threatened by an alleged abuser. Victims can ask for this Order if they’ve been abused by someone they’ve had a relationship with, or are having a relationship with, a family member or a person they’ve lived with, or are living with.
An upward trend in the use of these Orders has brought up some difficult and controversial questions.
In his article, Jason refers to Ministry of Justice figures which say that the number of Non Molestation Orders issued rose by over 20% between 2012 and 2014. Jason suggests that people are using these Orders not just to protect themselves from harm, but more controversially, to secure legal aid as these Orders have now become an entry point for legal applications in Children Act proceedings.
The implication then, is that individuals may be lying about domestic violence in order to access legal support. The latest figures from 2015 however, show that Non Molestation Orders being issued have gone down 5% since 2014. (We don’t know the reason for this reduction, but it could be a number of factors including the use of judicial discretion brought on by resource driven issues or a growing cynicism about the use of this Order).
Jason goes on to highlight other issues with Non Molestation Orders.
These Orders are applied for without notice (‘ex parte’), and can technically be granted for an unlimited period of time. This practice has been criticised for encroaching on an accused’s right to be heard. As a result, the Family Court has had to try to find a balance between protecting victims of violence and the accused’s legal rights.
In an attempt to solve this problem, the President Of The Family Division issued Guidance which recommended that no Non Molestation Order and its terms should be made for an unlimited period of time, and has to state the exact date on which it expires; it should also not be made for more than 14 days at a time where possible, and should also give the respondent a chance to set aside or vary the Order in question.
More difficulties set in at this point.
As the court system continues to struggle with the weight of cases and lack of resources, the above guidance poses several challenges for the system itself. The Red Book, sometimes referred to as The Family Court Practice, a guide used by Family professionals practicing law, takes the view that the President’s Guidance is unworkable, creating more expense for legal professionals, the courts and eroding public funds, as Non Molestation Orders essentially have to be re-applied for once the 14 day period or specified period is up and a threat of harm remains. The Red Book goes on to say that the Guidance also reduces protection for domestic violence victims as well.
Our question this week then, is this: how can we solve the current problems with Non Molestation Orders?