Non-molestation orders are a mainstay of County Court but rarely reach High Court level, meaning judges rarely receive guidance from the senior judiciary as to how applications are to be treated.

With that in mind the recent decision of Mrs Justice Lieven in DS v AC is particularly welcome. In her judgment she reviews the relevant law with a particular eye on whether and when non-molestation orders can be made “ex parte”, that is without prior notice being given to the recipient.

She identified the following principles that arose from the legislation and earlier case law (at paragraph 23):

a. 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, s.45(2)(a);

b. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);

c. A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at [1];

d. The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at [1];

e. “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, Horner v Horner at 51G;

f. The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child); and

g. There does not have to be a positive intent to molest, Re T at [42].

Most importantly, she reiterated that “without notice applications should only be made in exceptional circumstances where there is a risk of significant harm.” It may be that there is some concern that judges have been too quick in recent times to make orders without notice to the other person. It will be interesting to see whether this judgment has an impact on how easy it will be to obtain ex parte orders in the future.