Can a non-molestation injunction order be cancelled?
Whether you are applying for a non-molestation injunction or you are on the receiving end of an application for an injunction order it can be a frightening experience. That’s not because the courts aren’t sympathetic to victims of domestic violence or understanding of how worrying it can be to try to defend yourself from an injunction application.
However, if your first experience of the family court is an injunction hearing it can be concerning, especially if you are trying to secure or oppose a non-molestation injunction application without a specialist domestic violence and family solicitor supporting you. In this blog we look at whether a non-molestation injunction order can be cancelled and why you may want to do that.
Online and London based domestic violence and family law solicitors
If you need help with obtaining or cancelling an injunction order the family law team at OTS Solicitors are here to advise you. Call us on 0203 959 9123 or complete our online enquiry form so we can set up a skype, video conference or telephone appointment for you with one of our friendly and approachable family law solicitors.
What is a non-molestation injunction order?
Before we look at whether you can cancel a non-molestation injunction, we first need to examine what a non-molestation injunction is. From a family solicitor’s perspective, the title ‘non-molestation injunction’ isn’t very user friendly or modern in its language.
A non-molestation injunction order can be made by a family law judge under Part IV of the Family Law Act 1996. It is a court order that protects a victim of domestic violence or their children from further abuse or harassment from their abuser. In effect, a non-molestation injunction stops molestation from a named third party.
What a non-molestation injunction order doesn’t do is give the successful injunction order applicant the right to oust or exclude their partner, husband or wife from the family home or give them the right to occupy the family home. If this type of help is required then a victim of domestic violence can apply for an occupation order under the Family Law Act.
A non-molestation injunction can be made to protect an applicant from ‘molestation’ in all of its various forms, such as:
- Stalking and harassment or
- Social media abuse or
- Physical abuse or threats of abuse or
- Psychological and emotional abuse.
A non-molestation injunction order isn’t of course the only type of redress from domestic violence in its many forms. For example, harassment is a specific criminal offence and physical or sexual abuse could be one of a number of different criminal offences.
Applying for a non-molestation injunction order without notice
Often if someone needs an injunction order it’s an emergency situation. That’s why the court has the power to make an ex-parte order or, in other words, an order without the respondent to the application being told about the injunction application or the court hearing.
If the court believes that the making of a without notice non-molestation injunction order is justified then it can do so. When deciding whether to make a non-molestation injunction without first hearing from the respondent the court will consider all the circumstances including:
- Any risk of significant harm to the applicant or child, that is attributable to conduct of the respondent, if the injunction order is not made immediately or
- Whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately or
- Whether there is reason to believe that the respondent to the injunction application is aware of the proceedings but is deliberately evading service and that the applicant or child will be seriously prejudiced by the delay in trying to serve notice of the injunction application on the respondent by effecting substituted service.
If the court makes an order without the respondent being aware of the application or the first hearing date the court must give the respondent an opportunity to make representations relating to the injunction order as soon as just and convenient at a full hearing. The Family Law Act provides for this in order to provide emergency protection for victims of domestic violence whilst balancing the right for anyone subject to court proceedings to be able to have their say.
Why would you want to cancel a non-molestation injunction order?
There are many reasons why you might want to cancel a non-molestation injunction order. For example:
- If you are a respondent to a non-molestation injunction order that was made at a without notice hearing and you believe that the order was made because of malicious allegations that aren’t true or the injunction application was made as part of the other parent’s campaign to discredit you in a child arrangement order application or to stop you seeing your child
- If you are the respondent to the application and whilst you accept the reasons behind the injunction application you don’t believe the terms of the order are workable. For example, the order stops you having any contact with your ex-partner or coming near the family home so you can't arrange to see the children or can't go to your place of work because your partner is also employed there
- If you are the applicant for the non-molestation injunction and you have reconciled with the respondent
- If you are the applicant for the non-molestation injunction and you want to vary or cancel the order because whilst you haven’t got back together with your former partner their behaviour has improved and some contact is needed to organise child contact.
Cancelling a non-molestation injunction
As a non-molestation injunction is a court order an applicant and their former partner can't agree between themselves to cancel the order. If a respondent doesn’t comply with the order, they will be in breach of it. However, if an applicant doesn’t want the order either, for example because of a reconciliation, the applicant will struggle to enforce the order if there is clear evidence that they freely wanted the contact they had with the respondent.
However, it is best practice that if a family don’t want or no longer need an injunction order or they object to it that they should apply to court to cancel the non-molestation injunction order.
Under the Family Law Act a non-molestation injunction can be varied or discharged by the court on an application by:
- The applicant for the injunction order or
- The respondent to the injunction order or
- In some situations, by the court even though an application hasn’t been made by either the applicant or the respondent to the order.
Experienced domestic violence solicitors say that it is best to carefully consider whether it is appropriate to cancel a non-molestation injunction order, whether you are the person who applied for the order or the respondent to the court application.
Online and London based domestic violence and family law solicitors
If you need help with domestic abuse and applying for or cancelling a non-molestation order or an occupation order call OTS Solicitors on 0203 959 9123 or complete our online enquiry form so we can set up a video or telephone appointment for you with one of our friendly and approachable specialist family law solicitors.