Power and Irresponsibility: Wrongful Arrest for breach of a Non-Molestation Order

When a relationship breaks down and there is an allegation of abuse, it is common for either one or both parties to apply to the Family Court for either a Non-Molestation Order and/ or an Occupation Order.

A Non-Molestation Order is essentially an injunction aimed at stopping one ex-partner from taking certain abusive actions, for example harassing or pestering the other. It is a Civil Order that is granted by a Judge or Magistrate and typically lasts 12 months.

Occupation Orders often go hand in hand with Non-Molestation Orders and are used where the home is jointly owned or rented and it is necessary to restrict or exclude access. 

Often, either the Non-Molestation Order or the Occupation Order will carry a power of arrest in the event of a breach.

The precise stipulation of these Non-Molestation Orders or Occupation Orders can often be incredibly complicated especially when young children and/or a family pet is involved, and arrangements for “access” are required so that people still get on with living their lives whilst observing certain restrictions about contact and location etc.

In my experience, Police Officers routinely misunderstand and misinterpret such Orders and this can have terrible consequences.

Take for example my client Elaine Webber. As at October 2019, Elaine and her husband were living together in the matrimonial home whilst in the midst of an acrimonious separation and divorce.

To try and accommodate both parties and their children, elaborate Non-Molestation and Occupation Orders were drafted and agreed by which Elaine and her estranged husband were forbidden from ‘molesting’ the other and by which they each had access to certain sections of their home at set times.

The agreement was ratified by a Court Order and the relevant sections were as follows;

Applicant:  Wife

Respondent: Husband

Non Molestation Order

The following non-molestation orders are made against both parties

  1. Neither party shall harass or pester the other or encourage any other person to do so.
  1. Neither party shall cause or threaten physical harm to the other or encourage any other person to do so.
  1. Neither party shall remove or restrict or otherwise obstruct the other’s use of their personal chattels including cars.
  1. Neither party shall denigrate the other or display verbal abuse to one another, particularly in the presence of the children.
  1. The family dog shall not be permitted into the family home save when the respondent is allowed access to the property.  For the avoidance of doubt the dog shall be permitted in the basement flat with the respondent at all times.

The following non-molestation order is made against the applicant only;

  1. The applicant shall not remove, hide or otherwise meddle with the respondent’s medication.

The following non-molestation order is made against the respondent only;

  1. In the event that funds that are not joint funds, have been removed by the respondent as of today’s date as accepted by the respondent…….. and insofar as they have not already been returned, the respondent shall return those funds to the account from which they were debited.

Occupation Order

The occupation of the family home shall be regulated as follows:

  1. The respondent shall occupy the downstairs separately-accessed self-contained flat from ……. (hereon) and must not occupy the family home and its surrounding gardens, land and outbuildings save as follows:
  1. On week 1 from 7am until 8.30am on Tuesdays and Fridays and from 3.45pm until 10pm on Wednesdays and Fridays;
  • On week 2 from 7am until 8.30am on Mondays and Wednesdays and from 3.45pm until 10pm on Mondays and Thursdays;
  • On week 1 from 7am until 11.30am and from 3.45pm until 10pm on Saturdays and on Week 2 from 7am until 11.30am and from 4pm until 10pm on Sundays.
  • At all times when the applicant is abroad on holiday – the applicant shall give the respondent no less than one week’s written notice of her trips abroad.
  1. While the respondent has access to the family home as set out above, he must not enter or attempt to enter the marital bedroom or the office or the upstairs flat.
  1. While the respondent has access to the family home as set out above, the applicant shall be permitted to use the marital bedroom, office and lounge, but shall not use other parts of the property save for access.
  1. The applicant shall not enter the basement flat during the respondent’s occupation of it as per the terms of this order above.

The Order was to remain in place until financial matters had been agreed between the parties or by one year ahead whichever was later.

The Order ended with the following;

Note to Arresting Officer:

Under section 42A of the Family Law Act 1996, breach of a non-molestation order is a criminal offence punishable by up to five years’ imprisonment.  It is an arrestable offence and it is not necessary to obtain a warrant.

“A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.”

Family Law Act 1996, section 42A(1).

So, the Court Order made it plain that the Non Molestation Order carried with it a power of arrest,  but the Occupation Order did not.

About three weeks after this Order was drawn up, Elaine went out with a friend for the evening.  She returned to the premises at approximately 21.30.

Upon arrival, Elaine found the front door wide open and the premises in darkness.

Elaine was concerned for the welfare of her youngest son and so entered the basement flat.

Such entry was in breach of the Occupation Order but not the Non-Molestation Order.

Elaine found her children watching TV.  Her youngest child was due in school the next day and she reminded him of his pending bedtime.

At this, Elaine became aware that her estranged husband was filming her on his mobile phone and whilst doing so reciting the terms of the Court Order.

Satisfied that her son was well and would be going to bed shortly, Elaine left, thinking nothing more of the situation and she then retired for the evening

In the early hours of the next morning Elaine was woken to loud knocking and shouting on her bedroom door.

Elaine opened the door and established that two Police Officers had gained entry to the house.

Elaine was advised by the Officers that she had breached the terms of the Court Order and that she was to be arrested.

Elaine was confused but immediately felt that she had been ‘set up’ by her husband.

Elaine  was allowed to dress and was then obliged to accompany the Officers to a nearby parked car. 

Elaine was then transported to her local Police Station where she was processed and placed in a cell.

In due course, Elaine was interviewed where she answered all questions.

Elaine was then returned to her cell.  Eventually, she was charged with breaching the Non Molestation Order and kept in custody overnight to attend Court the next day.

The next day, Elaine was taken in handcuffs from the Police Station to a waiting van and then on to her local Magistrates Court.  On arrival, Elaine was again placed in handcuffs and taken to the cells beneath Court.

Eventually, Elaine appeared before the Magistrates and was represented by the Duty Solicitor. On advice, she pleaded not guilty.

Elaine was granted bail and was released.

Elaine was subsequently obliged to attend Court on two further occasions.  At the later hearing, she was advised that proceedings were discontinued. 

What a travesty. Elaine had breached the Occupation Order because of concern for her youngest child, but was not in breach of the Non-Molestation Order. There was no power of arrest attached to the Occupation Order and yet she was arrested, detained for 32 hours, transported to Court and then obliged to attend Court on two further occasions.

Elaine is now pursuing a claim for compensation for her unlawful arrest and I anticipate recovering a five figure sum on her behalf.

Relationship breakdowns can be stressful enough without the Police wading in heavy-handed, failing to act objectively and misunderstanding and misinterpreting key documents.

All too often Police Officers seem to operate under a mind-set of ‘arrest first, ask questions later’ rather than properly considering whether there are alternatives to arrest and, indeed, whether there is actually a power of arrest at all.  The onus on the Police to exercise intelligence, discretion and caution when it comes to arresting a party to a messy and complex matrimonial family dispute should be all the greater.

All names changed.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.