Re T
(A Child) [2017] EWCA Civ 1889 McFarlane LJ referred to these authorities with approval and said the courts should be very wary of offering any further precision to the definition of “molestation”. He went on to say at [42]:“42.When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the 'harassment' or 'alarm and distress' caused to those on the receiving end. It must be conduct of 'such a degree of harassment as to call for the intervention of the court' ( Horner v Horner and C v B ). Although in C v C the phrase 'was calculated to cause alarm and distress' was used, none of the authorities require that a positive intent to molest must be established.”22.In R v R [2014] EWFC 48 Peter Jackson J considered an appeal relating to a Non-Molestation Order which had originally been granted at a without notice hearing. He said at [1]:“1.This judgment follows a hearing on 18 November 2014 at which I allowed an appeal against a case management order made by a District Judge in proceedings under the Family Law Act 1996. The case highlights important principles, applicable to all such cases:(1)The default position of a judge faced with a without notice application should always be “Why?” , not “Why not?” As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.(2)The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.(3)Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person's freedom of action and require specific evidence to justify them.(4)The power to penalise non-compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6 ) with that aim.(5)The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 , whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.”23.The following principles can be extracted from the FLA and the caselaw: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);g.There does not have to be a positive intent to molest, Re T at [42].24.It is important that these principles are applied properly, and orders are not simply granted by default. In particular, it is important for all concerned to note that a without notice application should only be made in exceptional circumstances where there is a risk of significant harm. If a without notice application is made, then the statement in support must expressly deal with why the case is exceptional and what the significant risk alleged is. There can be no doubt that far too many such applications are made where there is no reasonable basis to grant the application without notice. 25.In the present case the District Judge was entirely correct not to grant the order on the without notice application. I appreciate that the Applicant was a litigant in person, and not conversant with the law. However, there was simply no basis for making a without notice order. Such an order is only appropriate where there is significant risk of immediate harm. In circumstances where there had been no contact from the Respondent for at least 3 weeks before the application was made, a without notice order would have been wholly inappropriate on facts such as this. 26.Further, in my judgement, there was no proper basis for any order to be made. There is no definition of molestation, and plainly the impact of particular conduct can be very different on different individuals. There does not have to be a threat of violence, and electronic communications can amount to harassment and cause alarm. However, the conduct has to be sufficient to justify the intervention of the court. Orders should not be granted where the evidence suggests that there is some upset at the end of a relationship, and little or nothing to suggest the conduct complained of would amount to “molestation”.27.The law is clear that there does not have to be a positive intent to molest. However, that does not mean that the test is a wholly subjective one whereby the Applicant simply has to feel distress. Such subjective distress does not alone justify the making of an order. The conduct has to be of a nature or degree that justifies the intervention of the court. 28.Here the Respondent probably sent the Applicant an excessive number of texts and emails at the end of the relationship and at least one of them was angry and hurt. However, by the time the application was made that conduct had ceased. There was in my view no proper basis for the intervention of the court.29.I therefore refuse to reinstate the application.