Navigating Minors’ Non-Molestation Orders: Insights from D v T [2023] EWFC 97

A Non-Molestation Order (NMO) is a legal injunction designed to protect an individual (applicant) from harm or the risk of harm. It prohibits the respondent (sometimes referred to as the perpetrator or alleged perpetrator) from molesting (using threatening or intimidating behaviour, violence, or harassment) the applicant, relevant children, or other associated persons. 

The legal test the court considers is all circumstances, including the health, safety, and well-being of the applicant and relevant child. The following principles guide the decision:

1. Evidence of molestation must exist.
2. The applicant (or child) must need protection.
3. Judicial intervention is required to control the behaviour complained of.

Who is an ‘associated person’?

To apply for a Non-Molestation Order, the Applicant must establish that they and the Respondent are “associated persons.” The categories of associated persons include:

• Married or civil partners
• Cohabitants or former cohabitants
• Relatives
• Those who have had an intimate personal relationship of significant duration.

The Family Law 1996 Act does not precisely define what constitutes an “intimate relationship” or a “significant duration.” However, one would reasonably assume that this means a relationship which has involved sexual intimacy to some extent.  A key question then arises; does this mean that minors are precluded from establishing that they are ‘associated persons’ for the purposes of obtaining a non-molestation order?

D v T [2023] 

This case relates to a 14-year-old girl who made an application for a Non-Molestation Order against a 15-year-old boy. The key issue before the Court was whether the minors were “associated persons” under the Family Law Act 1996. 

In this case, the court considered whether sexual intimacy was necessary to establish an intimate personal relationship. It provides helpful guidance, emphasising that sexual intimacy is not a strict requirement; the definition of an “intimate personal relationship” is broader and can encompass emotional connections, companionship, and shared experiences beyond sexual interactions.  The Court also noted that, whilst this particular couple had only been together for a matter of months, it had “little hesitation in concluding that four months [was] a significant duration for parties of their respective ages to be in a relationship”.   It appears therefore that the test is subjective in nature, taking into account the parties age, circumstances and how the applicant themselves would have viewed the nature and duration of the relationship. 

This case highlights that even minors can seek Non-Molestation Orders if they meet the criteria. This 14-year-old Applicant successfully relied on her intimate personal relationship with the Respondent to establish association.

This broader definition of an “intimate personal relationship” in the context of Non-Molestation Orders has significant implications for minors seeking such orders. It means that even if sexual intimacy is not involved, emotional connections, companionship, and shared experiences can establish association between minors. Therefore, if a minor can demonstrate an intimate personal relationship with the respondent, they may be eligible to seek a Non-Molestation Order, which of course was the case here in D v T.

Safeguards

When it comes to minors seeking Non-Molestation Orders, several safeguards are in place to protect their well-being, such as:

1. Legal Representation: Minors are entitled to legal representation. They can have a solicitor or a litigation friend (usually a parent or guardian) to assist them throughout the process.
2. Court Assessment: The court carefully assesses the minor’s capacity to understand the proceedings. If necessary, an independent expert may evaluate their understanding and ability to make informed decisions.
3. Best Interests: The court considers the minor’s best interests when determining whether to grant the order. This includes assessing the potential harm and the need for protection.
4. Child Welfare Reports: Social workers or other professionals may provide child welfare reports to inform the court about the minor’s circumstances and any risks they face.
5. Special Measures: The court can use special measures to protect minors during hearings, such as allowing them to give evidence via video link or using screens to shield them from the respondent.

Challenges

Minors on the other hand can face several challenges when seeking Non-Molestation Orders, and these are as follows:

1. Capacity Assessment: The court assesses whether the minor has the capacity to understand the proceedings and make informed decisions. This can be challenging, especially for younger children.
2. Emotional Impact: Legal proceedings can be emotionally distressing for minors. They may feel anxious, scared, or overwhelmed during court hearings.
3. Fear of Retaliation: Minors may fear retaliation from the respondent, especially if they have to continue interacting with them (e.g., in school or other social settings).
4. Access to Legal Representation: Finding appropriate legal representation can be difficult for minors. They rely on solicitors or litigation friends to navigate the legal process.
5. Complexity of Legal Language: Legal terminology and procedures can be confusing for minors. Simplifying legal concepts is essential.
6. Disclosure Challenges: Minors may struggle to disclose incidents of abuse or harassment due to shame, fear, or loyalty to the respondent.

How we as professional can support minors.

Legal professionals play a crucial role in supporting minors during the process of seeking Non-Molestation Orders. The following are examples:

1. Empathetic Communication: communicate with empathy, considering the emotional impact on minors. Creating a safe space for the minor to share their experiences.
2. Child-Friendly Language: Simplifying legal terminology and using child-friendly language helps minors understand their rights, options, and the legal process.
3. Explaining Procedures: Explaining court procedures step by step, ensuring the minor knows what to expect during hearings and meetings.
4. Best Interests Assessment: Assess the minor’s best interests, considering their safety, emotional well-being, and any potential risks.
5. Support Networks: Connecting minors with support networks, such as counsellors, social workers, or victim support services, can provide emotional and practical assistance.
6. Advocacy: Advocate for the minor’s rights, ensuring their voice is heard in court and if required ensure special measures are in place to protect the minor during proceedings.

In D v T [2023] EWFC 97, the court’s nuanced approach to minors seeking Non-Molestation Orders reiterates the importance of safeguarding their well-being. By recognising that an ‘intimate personal relationship’ need not be solely defined by sexual intimacy and taking a subjective approach to the requirement for it to have been of a ‘significant duration’, the court ensures that minors can access legal protection when faced with harassment or threats. As legal professionals we continue to advocate for minors’ rights, we move toward a more inclusive and protective legal landscape—one where even the youngest among us can seek refuge from harm.

If you or someone you know would like to speak to one of our specialist expert solicitors in relation to the above contents, please do get in touch.