Are applicants still abusing ex parte non-molestation order applications after DS v AC [2023] EWFC 46? A quick dive

A non-molestation order is a protective order made under section 42 the Family Law Act 1996. It can prohibit a person from doing a number of things, like contacting the applicant, or going near their home or work. They are seen as draconian orders, as they can criminalise conduct that is not usually, in of itself, a crime. 

Due to this, they are usually made with formal notice to a respondent i.e. the respondent is made aware of the application before the court decides whether or not to make an order. However, it is possible for an applicant to make an ‘ex parte’ (i.e. without notice) application. This is when a respondent has no knowledge of the application until after it is made. This can result in a respondent finding out that a court order already exists against them, without the court having any input from them. The matter then returns to court, not to decide if a non-molestation order should be made, but for the respondent to decide if they want to oppose the order continuing or not. 

Whether coincidental or causative, there appeared to be an increase in the number of ex parte non-molestation order applications during the Covid-19 pandemic. This higher level did not appear to abate in the months and years that followed. 

Legal background

A non-molestation order can be ordered against an ‘associated person’ (mainly blood relatives and romantic partners). It prevents a person from ‘molesting’ the applicant and/or a relevant child. Breaching such an order, without a reasonable excuse, can be a criminal offence that can potentially result in conviction and imprisonment. 

The term ‘molesting’ is not defined in the Family Law Act 1996 (‘the Act’). In Davis v Johnson [1979] AC 264 (under the old Domestic Violence and Matrimonial Proceedings Act 1976), Lord Scarman suggested a definition, relating to the ‘mischief’ the Act intended to remedy. He held that:

‘…the mischief against which Parliament has legislated by section 1 of the 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.’

It was held in Horner v Horner [1983] 4 FLR 50 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.’

In deciding whether to make an order, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant. Cases rarely come before High Court judges, so there is little reported case law compared to other areas. There is even less case law on the issue of ex parte applications. 

Restating principles

The case of DS v AC [2023] EWFC 46 gave a valuable summary of the law and principles, in particular those relating to ex parte applications. In DS v AC, the applicant and respondent were part of the same networking group and started a relationship. The applicant accused the respondent of being controlling by frequently calling and phoning her to monitor her. The applicant then began to work for the respondent part-time. The relationship broke down, with the applicant then texting the respondent saying that the relationship was over and that she would take ‘formal action’ if he contacted her. 

The respondent contacted the applicant by ringing her phone on a few occasions. He also emailed her. He emailed again about a financial dispute pertaining to her part-time employment for him. He then sued her in relation to that issue and she counter-claimed for unpaid wages. The respondent then sent a further email about the financial issue.  The applicant then applied for an ex parte non-molestation order. 

Mrs Justice Lieven analysed the case law and the legislation and summarised the principles to apply when considering an ex parte/without notice non-molestation order application:

1. On a without notice application the court must consider whether there is a risk of significant harm attributable to the respondent if the order is not granted immediately;
2. And whether the applicant would be deterred or prevented from making the application if the order is not made immediately; 
3. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party;
4. The Court should use its powers under the Act with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice;
5. “molestation” does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court;
6. The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end;
7. There does not have to be a positive intent to molest.

The President of the Family Division then released the Practice Guidance on non-molestation orders in July 2023, spelling out further principles in relation to non-molestation orders, such as case management and return dates. 

Recent cases 

As of writing, there appear to be around five reported cases that have cited DS v AC [2023] EWFC 46. They tend to cite the case with approval as to its general principles. There do not appear to be any reported cases post-DS v AC where the court has considered the quintessential situation of an application that should be on notice being made without notice. 

This does not necessarily mean that the courts are ignoring DS v AC. Most non-molestation order application are dealt with in private, with few reported judgments. Often, an ex parte application will be ordered to be turned into an on notice application by a judge ‘on the papers’ (i.e. without a court hearing). Such an action would not result in a judgment that could be published.

Potential issues

There is the concern that a respondent could ‘win the battle but lose the war’ when it comes to an ex parte application. The court can make interim (i.e. before a final hearing) non-molestation orders. Therefore, a respondent could be in a situation an applicant makes an unjustified ex parte application, it is granted, the parties come to court for the first hearing before a different judge and that judge agrees that the non-molestation order should not have been made without notice. However, that judge would then have to consider if there should be a non-molestation order in place until the final hearing can determine the allegations made by the applicant. This would potentially mean that the ex parte order would continue because the judge would have made an interim order in any event. 

There may be little that can be done in such a situation. Perhaps the remedy is to award costs against an applicant who makes an unjustifiable ex parte application in the first place. However, if the applicant is on legal aid (which is becoming more and more common), such potential costs orders may run directly into the wall that is the rules and regulations about costs orders and recovery of them against parties who are on legal aid. Maybe the answer lies with wasted costs orders against legal representatives, but this may be an extreme response. 

Conclusion

It is clear thar DS v AC was not a one off; the courts have noticed it and are citing it in judgments. However, anecdotal evidence from barristers seems to suggest that many unjustified ex parte applications are still being made. While it appears that the winds are starting to change, further comprehensive study will need to be undertaken to be sure.

Without notice application may also be on the rise partly due to litigants in person, since they are unlikely to understand the case law, legislation and legal principles. Navigating the Family Court system can be difficult, so litigants appearing in person may make the wrong type of applications in the first place.

Whether it is before, during or after an application is considered or responded to, getting legal advice can be critical. 

28th Apr 2026

Tom Gilchrist

Call 2018 (2016 - New Zealand)