New ‘Practice Direction’ on Non-Molestation Orders. LINK
A hearing by a senior judge, that they are being abused, was reported in the last Newsletter.
Perhaps as a result, the ‘President of the Family Division of the High Court’ – in plain English, the boss of the family courts, has issued a new ‘Practice Direction’. How NMOs should be handled. Lawyers and others with a stake in deploying tactics against the other side will not want to apply it. It restricts their moves.
But if you are affected, read it. And if you are, or fear you may be a target, ensure it is applied.
Part I- NMOs (Non-Molestation Orders)
A ‘Practice Direction’ is guidance from the Judiciary on how various types of issues should he handled in the family courts. There appears to be no enforcement of them. We suspect that most Judges read them. But that they have little impact, particularly in Magistrates Courts, unless the ‘Clerk’, the official whose job it is to advice magistrates on the law, draws their attention to them. Breach of them, however, can be grounds for appeal.
‘Non-Molestation Orders’ are orders from a court that the person named must not ‘molest’ or ‘harass’ or otherwise be a nuisance to, the other person named. The terms vary but it is common that they must not go into a certain area around where they live, must not speak to, write, phone or email them. They need to be read with care, as breaches of them are criminal offences. They may be taken very literally. There have been cases of entrapment. For example, an invitation to meet, taken up, has resulted in arrest.
There are two sorts. A ‘ex-parte’ (Latin, from one side) or ‘without notice’ hearing. An order is given without the ‘target’ even being told. This is to cover emergencies or other extreme situations.
If so, there is supposed to be another hearing very soon where the other side can be heard. This requirement seems, often, to be blanked. The other is ‘on notice’, where the target has had a chance to answer the allegations, usually of threats or abuse.
The orders are usually time limited, often a year. They are often used tactically. First to get legal aid for the initiating litigant. Secondly, to surprise, startle and wrong foot the other party. Thirdly, to divert the attention of subsequent hearings away from the best interests of the child towards allegations of mistreatment by the target of the other parent.
Part 2
‘Occupation orders’ - sometimes NMOs are accompanied by this. That the target must leave the home where the instigator lives. This can be alarming, if they are served the order as they leave work, as sometimes happens, and have nowhere to go and nothing with them except an empty lunch box. They are given less readily for this reason, but it happens.
Congratulations to our splendid volunteer, Richard Nixon of the Crawley group, for pointing the following out. It should have been included in the PJ on NMOs. That notice of an application has to be served on the landlord of a rented property and mortgage holder of a house covered by a mortgage. More protection for a target who could otherwise find themselves instantly homeless.
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