When an applicant takes out a non-molestation order, it has serious practical consequences for the respondent. This may mean they need to change routines, avoid certain locations, communicate only through solicitors or agreed third parties, and avoid anything that could be treated as direct or indirect contact. Should there be allegations of a breach, the matter then moves from the Family Court into the criminal justice system, and arrest, prosecution and imprisonment will follow.

If an order has been made against you, the immediate question is whether to accept it, seek changes to the wording or actively oppose it in court.

In this guide from the Family Law solicitors at Tyler Hoffman, we explain when you should contest a non-molestation order, the evidence required, and the importance of seeking legal advice before you commit to a course of action.

When could it be worth contesting a non-molestation order?

There are many reasons to contest a non-molestation order. Often, people find themselves in a position where:

• The application against them is based on incomplete, misleading or includes selective evidence

• There is counter evidence that changes the picture

• The proposed order is too wide or impractical

• The order affects child arrangements, work, housing or necessary communication

• The order could affect the position of other Family Court proceedings

• There are connected police files, bail conditions or criminal proceedings

• You are concerned about findings being made against you

• There is evidence from messages, call logs, medical records, witness statements or documents that undermines the application

To make sure your position is fully represented in hearings, it's imperative you seek legal advice from lawyers experienced in responding to these orders. Contesting a non-molestation order means taking active steps through the Family Court process.

If the order was made without notice, the respondent may only find out once it has already been granted. In these cases, the court will normally list a return hearing, which will be your first opportunity to respond to the allegations and ask the judge to reconsider the order.

At Tyler Hoffman, we will establish whether there is a clear legal or evidential basis for challenging the order. Depending on the situation, this may involve requesting the court to narrow or vary the terms, or asking for it to be discharged completely.

When might contesting not be the best option?

Contesting a non-molestation order should not be a rushed decision. A respondent may feel strongly that the allegations are wrong, but acting quickly without a clear strategy can create further risk.

a successful challenge will rest on the evidence available, the wording of the order and the range of possible outcomes. Rebutting allegations is challenging where the applicant relies on witness statements, messages, police records, medical records and other supporting evidence. In these cases, if the proposed order is narrow, time-limited and can be resolved without admissions, it may be more practical to offer what is known as an undertaking, or seek changes to the terms rather than contest the order directly.

Even if you feel aggrieved by the allegations against you, it is important to approach contesting the order with a careful legal strategy in place. The wrong step can make the position worse. A poorly prepared challenge may lead to the order being continued, findings being made or further directions being given.

If the issues cannot be resolved at the first return hearing, the court may list a final hearing, where the judge will decide whether the order should remain in place, be changed or discharged. Where there are connected criminal allegations, anything said or filed in the Family Court may also need to be considered carefully before it is put forward.

For these reasons, your first step after receiving an order should be to speak with a solicitor.

What is an undertaking?

An undertaking is a formal promise to the court. In a non-molestation order case, it may be offered by the respondent as an alternative to the court making or continuing the order.

AtTyler Hoffman, we will assess whether an undertaking is a realistic option, and where suitable, propose it to the applicant's solicitor, and negotiate wording. This will then be put before the judge for a decision.

An undertaking can sometimes be given without admitting the allegations in question. This may be useful where the respondent wants to resolve the application without findings being made. Findings are formal decisions by the judge about disputed allegations. If findings are made against you, they may affect your position in related Family Court proceedings like child arrangements, and may also need to be considered carefully where there is any police involvement.

Our team is experienced in this process, and will focus on making sure that the wording of the undertaking is fair and clear. Without experienced legal guidance, you could find yourself in a position where the terms are too wide, impractical or don't shield you from having to acknowledge allegations on official record.

Can contesting affect criminal proceedings or child arrangements?

Contesting a non-molestation order can affect other legal proceedings, including child arrangements, divorce or separation proceedings and any related police investigation.

This is particularly important where the same allegations are being considered in more than one forum. A statement filed in the Family Court may be relevant if police are also investigating an alleged offence. Evidence about contact, threats, harassment or domestic abuse may also be considered when child arrangements are in dispute.

The overlap can create risk. A respondent may want to deny allegations in the Family Court, but if there is also a police investigation, the wording of any statement needs careful consideration. The same applies where there are bail conditions, criminal proceedings or a risk of being interviewed under caution.

Contesting the order itself is usually dealt with in the Family Court, often with advice from a family lawyer. However, if police are involved, a breach is alleged or if there is a risk that evidence from the Family Court may affect a criminal investigation, criminal defence advice should be taken before any statement is made.

How can a solicitor help you decide whether to contest?

  You should never base your decision on whether to accept or contest an order based on your emotional state of mind. Having legal representation to consider all your options means you can respond in a way that protects your legal position. Your solicitor will establish the facts to hand, your grounds for contesting the non molestation order, potential evidence in your favour, and the potential to seek an undertaking that could protect your position. These decisions require a cool head and a deep understanding of the legal process.

Even if the allegation is supported by significant evidence, a solicitor can challenge inconsistencies and push for narrow restrictions where they are too broad and general.

They can identify whether the allegations are supported by evidence, whether there are inconsistencies, whether the proposed restrictions are too wide and whether there is counter-evidence that should be put before the court.

Where a breach is alleged and police are involved, a criminal defence solicitor can also advise on arrest, voluntary interview, and the risk of prosecution.