Detailed structure and notes on non-molestation orders to answer exam questions
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LPC - Legal Practice Course
Institution
LPC - Legal Practice Course
Full and in-depth structure and notes on non-molestation orders. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on non-mols. Contains extensive but easily compreh...
‘x’ should apply for a NM order which is a court order to prohibit the respondent from molesting another person who is
associated to the respondent or a relevant child s42 FLA.
Who is an associated person?
S62(3) a person who is associated to the respondent will be (apply what is relevant)
Are/were married to each other
Are/were CPs
Are/were cohabitees
Live/lived in same household
Are relatives
Agreed to marry each other (whether agreement is terminated or not)
Have/had an intimate personal relationship of significant duration
Entered into civil partnership (whether agreement is terminated or not)
In relations to any child, the A and R are parent of the child or have PR over child
Parties to the same family proceedings other than this proceeding.
APPLY – how is ‘x’ associated to the Respondent?
NOTE: a child can apply in their own right (s43) – those under 16 need leave from the court and court satisfied child has
sufficient understanding of the NM.
Court can make an order on its own accord within other family proceedings
On notice / Without Notice:
The applicant can make the order on notice or without notice being given to R. Which should be applied for?
Note: If on notice – A needs to give R two clear day’s notice.
Court will make the order without notice when they consider it to be ‘just and convenient’ to do so (s45(1) FLA). The court
will give thought to all the circumstances of the case– including factors under s45(2):
Risk of harm to A and child attributable to A or child by R if no order is made immediately
APPLY
whether it is likely, if an order was not made immediately, A would be deterred or prevented from pursuing the
application
APPLY
whether there is reason to believe R is aware of proceedings but is deliberately avoiding service and that delay
would seriously prejudice A or child
APPLY
The reason should be sufficient to not raise concerns of Article 6 HRA.
Would court make order with/without notice?
If a without notice order is made, R will still have the opportunity to represent themself at a full hearing and this will take
place as soon as it just and convenient (s45(3).
How long should it last?
S42(7) states the order can be made for a specified period or until a further order is made
APPLY – how long should it last on the facts?
Should the order be made?
To make the NM order, the court must be satisfied that s42 FLA is present on the facts:
That it is more likely than not that A will be molested R.
The court will consider all the facts of the case – s42(5)
Have regard to securing the health, safety and well-being of Applicant and any relevant child – s42(5)(a) and (b)
– thus, consideration of the child’s welfare will be made as this is paramount.
APPLY – discuss facts
Court then must decide duration – apply.
Court must also decide whether on notice / without notice – apply.
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