Breaching a Non-Molestation Order: Penalties & Legal Options

This guide explains what happens if a non-molestation order is breached, the potential penalties, how to report a breach, what evidence may help, and which legal options are available. It focuses primarily on England and Wales, where breaching a non-molestation order is a specific criminal offence under section 42A of the Family Law Act 1996. Different rules may apply in Scotland and Northern Ireland.

Quick Summary: Breaching a Non-Molestation Order

Key Takeaways

• A non-molestation order must be followed according to its precise terms.
• In England and Wales, breaching an order without reasonable excuse can amount to a criminal offence.
• Depending on the circumstances, the police may investigate, arrest the respondent where legally justified, and refer the case for a charging decision.
• A criminal conviction can result in imprisonment, a fine or both.
• Evidence should be preserved safely and reported promptly where appropriate.
• The protected person should not have to investigate a suspected breach alone or put themselves at risk to obtain evidence.
• A respondent who believes an order is incorrect, unclear or no longer appropriate should seek legal advice about applying to vary or discharge it rather than ignoring it.

What Is a Non-Molestation Order?

A non-molestation order is a protective injunction available under Part IV of the Family Law Act 1996 in England and Wales. It can prohibit a person from molesting someone associated with them or, where the legal requirements are met, a relevant child.

The purpose of the order is to protect people from behaviour that may include harassment, intimidation, threats, violence or other conduct covered by the court’s restrictions.

A non-molestation order may be made in circumstances involving domestic abuse, including abuse between current or former partners and certain family members. The precise eligibility requirements depend on the relationship between the parties and the facts of the case.

What Can a Non-Molestation Order Prohibit?

The restrictions depend on the wording of the individual order. They may include prohibitions against:

• Using or threatening violence against a protected person.
• Harassing, intimidating or threatening the protected person.
• Contacting the protected person by telephone, text message, email or social media.
• Asking another person to contact or intimidate the protected person, where that conduct is prohibited.
• Approaching a specified home, workplace or other location, if the order expressly restricts this behaviour.
• Engaging in other conduct specifically prohibited by the court.

Not every order contains all these restrictions. The respondent must read the actual court order carefully and follow the prohibitions that apply to their case.

Is Breaching a Non-Molestation Order a Criminal Offence?

Yes. In England and Wales, section 42A of the Family Law Act 1996 makes it a criminal offence to do something prohibited by a non-molestation order without reasonable excuse.

The legal consequences depend on the circumstances, the wording of the order, the evidence and the court proceedings. A suspected breach is not automatically proof of guilt; the relevant legal tests must still be satisfied.

The existence of the order, the conduct alleged to have breached it and any relevant explanation or defence may all be considered during the legal process.

Does the Respondent Need to Know About the Order?

Awareness of the order can be an important issue, particularly for certain orders made without notice. Section 42A contains a specific provision concerning orders made under section 45(1), requiring awareness of the order for the conduct covered by that provision to constitute the offence.

The legal position depends on how the order was made, what the respondent knew and the available evidence. Anyone facing an allegation about service or notification should obtain advice from a criminal or family law solicitor.

What Counts as Breaching a Non-Molestation Order?

A breach occurs when a person does something that the applicable order prohibits, subject to the relevant legal requirements and any reasonable excuse.

Whether conduct amounts to a breach depends on the exact wording of the order. The following examples illustrate situations that may lead to an allegation of breach.

1. Contacting the Protected Person

If an order prohibits direct contact, sending a text message, making a phone call, emailing or messaging through social media may breach the restriction.

The message does not necessarily have to contain a threat for it to fall within a no-contact provision. The wording of the order is critical.

2. Contacting Someone Through a Third Party

If the order prohibits indirect contact or the conduct otherwise falls within a specific restriction, asking a friend or relative to pass on messages may amount to a breach.

The legal assessment depends on what the order prohibits and the evidence of the respondent’s conduct.

3. Approaching a Restricted Location

Some orders prohibit a respondent from approaching a protected person or attending specified places. Entering a restricted area or approaching a protected person may breach the order if the relevant restriction applies.

Respondents should not assume that a location is permitted simply because it is a public place.

4. Harassment, Threats or Intimidation

Threatening messages, intimidating behaviour, unwanted visits or other prohibited conduct may amount to a breach. Depending on the facts, the same conduct may also constitute a separate criminal offence.

5. Using Social Media to Make Contact

Tagging, messaging, commenting or using another account to communicate may be relevant if the order prohibits the type of contact involved.

Deleting a message or closing an account does not necessarily remove evidence of the conduct.

What Happens If a Non-Molestation Order Is Breached?

When a suspected breach occurs, the response will depend on the seriousness of the incident, the evidence and the legal route used to enforce the order.

Step 1: The Breach Is Reported

The protected person or another person with relevant information can report a suspected breach to the police. If someone is in immediate danger, they should contact emergency services.

The report should explain what happened, when it occurred, what part of the order may have been breached and whether there are any immediate safety concerns.

Step 2: The Police Assess the Evidence

Police may review the order, speak to the people involved, examine communications, obtain witness accounts and investigate the alleged conduct.

Depending on the circumstances and applicable legal powers, officers may arrest the suspect. Arrest is not automatic in every case.

Step 3: A Charging Decision Is Considered

Following an investigation, the case may be considered for prosecution under the applicable criminal procedure. The decision depends on the evidence and the relevant charging standards.

If the matter proceeds to court, the prosecution must establish the offence to the required criminal standard.

Step 4: The Court Considers the Case

The court may consider the evidence, the wording of the order, whether the prohibited conduct occurred and any legally relevant defence.

If the defendant is convicted, the court determines the appropriate sentence according to the law and the circumstances of the case.

What Are the Penalties for Breaching a Non-Molestation Order?

The penalties can be serious. Under section 42A of the Family Law Act 1996, the offence carries a maximum penalty of imprisonment for a term not exceeding five years, a fine or both when dealt with on conviction on indictment.

For summary conviction, the legislation provides for imprisonment within the applicable magistrates’ court limit, a fine or both. The applicable sentencing provisions should be checked for the date and type of proceedings.

These are maximum penalties, not automatic sentences. The outcome in an individual case depends on the seriousness of the breach, the evidence, the defendant’s circumstances, previous offending and the relevant sentencing law.

Factors That May Affect the Sentence

Depending on the circumstances, the court may consider:

• The nature and seriousness of the prohibited conduct.
• Whether the conduct involved threats, violence, intimidation or repeated unwanted contact.
• The impact on the protected person.
• Whether the respondent has previous relevant convictions or breaches.
• Whether the respondent understood the order and its restrictions.
• Any relevant aggravating or mitigating circumstances.
• The applicable sentencing guidelines and statutory provisions.

A person should not assume that a first alleged breach will be treated as insignificant. Equally, an allegation does not itself establish guilt or determine the sentence.

Can Someone Be Arrested for Breaching a Non-Molestation Order?

Yes. A suspected breach can lead to arrest where the legal requirements for arrest are met. However, it is not accurate to say that every report automatically results in arrest.

If you are the protected person, provide the police with the order and any available evidence. Explain whether the respondent is nearby, whether threats have been made and whether you believe there is an immediate risk.

If you are the respondent and the police contact or arrest you, seek legal advice promptly. Do not contact the protected person to discuss the allegation if doing so may breach the order.

How to Report a Breach of a Non-Molestation Order

If you believe someone has breached a non-molestation order, consider the following steps.

1. Contact the Police

Report the suspected breach and explain what happened. If there is immediate danger, contact emergency services rather than waiting to assemble evidence.

Provide the police with the relevant court order if it is available.

2. Explain Which Restriction May Have Been Breached

Describe the conduct and identify the part of the order that you believe applies. You do not need to make the final legal decision yourself; the authorities can assess the facts.

3. Preserve Evidence

Keep relevant messages, emails, call records, photographs, videos, CCTV footage and witness details. Record the date, time and circumstances of each incident as accurately as possible.

Do not edit evidence in a way that changes its meaning. Keep original files where possible and store copies securely.

4. Tell the Police About Any Immediate Risk

Explain if the respondent has made threats, appeared at your home or workplace, followed you or engaged in other behaviour that makes you feel unsafe.

Do not put yourself at risk to collect evidence or confront the respondent.

5. Seek Specialist Support

A family law solicitor, domestic abuse support service or other appropriate adviser can explain the available protective and enforcement options.

If you have difficulty communicating safely, tell the police or support service about that concern.

What Evidence Is Needed to Prove a Breach?

Evidence depends on the alleged conduct and the restrictions in the order. Useful material may include:

Evidence should be preserved lawfully and safely. Do not access another person’s accounts without permission, alter records or risk your safety to obtain material.

Can a Non-Molestation Order Breach Be Dealt With by the Family Court?

In England and Wales, a breach may be pursued as a criminal offence or, where appropriate, through civil contempt proceedings.

These are different legal routes. The choice of route depends on the circumstances and applicable law. The Crown Prosecution Service explains that criminal proceedings and civil contempt proceedings are distinct, and the legislation restricts punishing the same conduct through both routes in the circumstances it specifies.

A person seeking enforcement should obtain legal advice about the appropriate process rather than assuming that every breach must be dealt with in the same way.

What Is Civil Contempt of Court?

Civil contempt proceedings concern alleged disobedience of a court order. In suitable cases, the court may consider enforcement or committal proceedings.

The procedure has specific requirements, including the need to establish the alleged breach in accordance with the applicable rules. Legal advice is particularly important because the consequences may be serious.

What Can You Do If You Are Accused of Breaching an Order?

If you have been accused of breaching a non-molestation order, take the allegation seriously. Do not ignore police contact, court papers or the restrictions in the order.

1. Read the Order Carefully

Check the precise terms, duration and any exceptions. Do not rely on what another person says the order permits.

2. Do Not Contact the Protected Person to Explain

Even if you believe the allegation is mistaken, contacting the protected person may create further problems if the order prohibits contact.

Use an appropriate solicitor or legal process to communicate where necessary.

3. Preserve Relevant Evidence

Keep messages, location records, correspondence and other material that may be relevant to your account. Do not delete, alter or fabricate evidence.

4. Obtain Legal Advice

A solicitor can assess the allegation, explain the legal process and advise on the evidence and any available defence.

If you cannot afford legal representation, ask whether you qualify for legal aid or other assistance.

5. Apply to Vary or Discharge the Order if Appropriate

If you believe the order is no longer necessary, contains an error or needs to be changed, obtain legal advice about applying to the court. Do not assume that an application automatically suspends the existing restrictions.

Continue to comply with the order unless and until the court changes it or it otherwise ceases to have effect.

Are There Any Defences to Breaching a Non-Molestation Order?

Section 42A makes an offence subject to the absence of a reasonable excuse. Whether a particular explanation amounts to a legally recognised defence depends on the facts and applicable law.

Other issues may also arise, such as whether the conduct actually fell within the order, whether the respondent was aware of the order where awareness is legally required, or whether the evidence reliably identifies the person responsible.

A person accused of a breach should not assume that an explanation will automatically be accepted. A solicitor can assess the legal issues and identify relevant evidence.

Can the Protected Person Give Permission to Contact Them?

A protected person should not assume that agreeing to contact automatically changes the court order. The respondent remains responsible for complying with the restrictions unless the order is lawfully changed or discharged.

If both parties want to change the arrangements, they should obtain legal advice about the proper procedure. Informal messages or verbal agreements should not be treated as a substitute for a court order.

What Happens If the Breach Involves Domestic Abuse or Further Offences?

A suspected breach may involve conduct that is also alleged to constitute another offence, such as assault, harassment, stalking or making threats.

The authorities may consider the breach and any separate alleged offences according to the evidence and applicable law. The Crown Prosecution Service states that breaches of protective orders should be carefully considered and that any additional offences should also be assessed where relevant.

If you believe you are at risk of further abuse, tell the police and seek specialist support. Do not wait for the outcome of a prosecution before asking about immediate safety measures.

Can a Non-Molestation Order Be Extended or Changed?

A person who needs continued protection may be able to apply to extend an existing injunction before it expires. Whether an extension or variation is appropriate depends on the order and circumstances.

A respondent who wishes to challenge or change the restrictions must use the proper legal process. Neither party should assume that the order has changed simply because circumstances or the relationship have changed.

Seek legal advice well before an order expires if protection is still needed or if a variation is being considered.

Legal Aid and Getting Legal Help

Legal aid may be available for certain domestic abuse-related proceedings, depending on the type of case and the relevant eligibility rules.

The GOV.UK guidance on domestic abuse injunctions explains that there is no court fee to apply for the relevant injunction and that legal aid may help with legal advice where eligibility requirements are met.

You can also seek guidance from organisations such as Citizens Advice, Refuge, Women’s Aid or the Men’s Advice Line. The appropriate service depends on your circumstances and location.

If you are facing a criminal allegation, ask a solicitor about criminal legal aid and representation for the relevant proceedings.

Frequently Asked Questions About Breaching a Non-Molestation Order

1. Is breaching a non-molestation order a criminal offence in the UK?

In England and Wales, breaching a non-molestation order without reasonable excuse can be a criminal offence under section 42A of the Family Law Act 1996. The law and enforcement procedures should be checked separately for Scotland and Northern Ireland.

2. How long can someone go to prison for breaching a non-molestation order?

For the criminal offence in England and Wales, the maximum penalty on conviction on indictment is five years’ imprisonment, a fine or both. The actual sentence depends on the case and applicable sentencing law.

3. Will the police arrest someone for breaching a non-molestation order?

The police may arrest a suspect if the relevant legal requirements are met. Arrest is not automatic in every case and depends on the circumstances, evidence and applicable powers.

4. What counts as a breach of a non-molestation order?

A breach may involve prohibited contact, threats, harassment, approaching a restricted location or other conduct covered by the order. The exact restrictions in the individual order determine what conduct is prohibited.

5. Can sending one text message breach a non-molestation order?

Yes, it may do so if the order prohibits the relevant type of contact. Whether a particular message constitutes an offence depends on the order, the circumstances and the legal requirements.

6. What evidence should I provide when reporting a breach?

Relevant evidence may include the order itself, messages, call logs, screenshots, CCTV, witness details and a dated record of incidents. Preserve original material and prioritise your safety.

7. Can I contact the protected person if they contact me first?

Do not assume that you can. The order remains in force according to its terms unless lawfully changed or discharged. Obtain legal advice before responding if contact may be prohibited.

8. Can a non-molestation order breach be dealt with as contempt of court?

In England and Wales, civil contempt proceedings may be available in appropriate cases. Criminal proceedings and contempt proceedings are distinct, and the law restricts punishing the same conduct through both routes in specified circumstances.

9. Can I challenge a non-molestation order?

Depending on the circumstances, you may be able to apply to vary or discharge the order or challenge an allegation of breach. Obtain legal advice and continue complying with the existing order unless the court changes it or it otherwise ceases to have effect.

10. What should I do if I am in immediate danger?

Contact emergency services if you are in immediate danger. Preserve evidence only if it is safe to do so, and seek support from the police, a qualified solicitor or an appropriate domestic abuse organisation.

Final Thoughts

Breaching a non-molestation order can lead to serious consequences, including police investigation, criminal prosecution, imprisonment or a fine. In England and Wales, the applicable offence is set out in section 42A of the Family Law Act 1996.

The exact outcome depends on the wording of the order, the conduct alleged, the available evidence and the applicable legal process. A report does not automatically establish guilt, and anyone accused of a breach should obtain appropriate legal advice.

If you are protected by an order and believe it has been breached, prioritise your safety, report the incident where appropriate and preserve evidence without putting yourself at risk. If you are subject to an order, follow its terms and use the proper court process if you need to challenge or change it.