Introduction
Non-molestation orders and protection from harassment both provide legal protection against abusive behaviour, but they arise from different statutory frameworks and apply in different circumstances. Non-molestation orders are a family law remedy under the Family Law Act 1996 (‘FLA 1996’), limited to parties in domestic or family relationships and aimed at addressing domestic abuse. Protection from harassment under the Protection from Harassment Act 1997 (‘PHA 1997’) applies more broadly, is not relationship-specific, and provides both criminal sanctions and civil remedies for a course of harassing conduct. The appropriate remedy depends on the relationship between the parties and the nature of the conduct.
Non-molestation Orders (Family Law Act 1996)
Non-molestation orders are governed by section 42 FLA 1996 and are specifically designed to protect victims of domestic abuse. They are only available where the applicant and respondent are “associated persons”, such as spouses, former partners, civil partners or individuals in an intimate personal relationship.
The legal test is set out in s 43(5) of the FLA 1996 and requires the court to have regard to all the circumstances of the case, including the need to secure the health and safety and wellbeing of the applicant and relevant child. The Court of Appeal gave guidance on the test to be applied on these applications in C v C [2001] EWCA Civ 1625, namely:
- Is there evidence of molestation?
- Does the applicant need protection?
- On the balance of probabilities, is a court order required to control the respondent’s behaviour?
The purpose of a non-molestation order is preventative. It is intended to restrain violence, threats, harassment, and other forms of molestation. Although “molestation” is not defined in statute, the courts have adopted a broad interpretation. In Vaughan v Vaughan [1973] 1 WLR 1159, molestation was treated as synonymous with “pestering”, drawing on dictionary definitions such as “to cause trouble; to vex; to annoy; to put to inconvenience”. Importantly, the concept extends beyond physical violence. In Davis v Johnson [1979] AC 264, the House of Lords confirmed that non-violent conduct may amount to molestation, and in C v C [2001] EWCA Civ 1625 the Court of Appeal emphasised that any behaviour constituting harassment of sufficient seriousness to justify judicial intervention may fall within the scope of the order.
A notable feature of non-molestation orders is the court’s ability to make them without notice where it is just and convenient to do so. Breach of a non-molestation order is a criminal offence, provided the respondent was aware of the order and had no reasonable excuse for breaching it. This gives such orders immediate and serious enforcement consequences, reflecting their role as a frontline protective mechanism in cases of domestic abuse.
Protection from harassment (Protection from Harassment Act 1997)
Where clients are unable to avail themselves of the provisions of the FLA 1996 because they do not satisfy the criteria or eligibility (for example they are not associated persons within section 62(3) FLA 1996), or where damages are sought, they may find a solution under the PHA 1997. If there are concurrent proceedings under both FLA 1996 and PHA 1997, they should be consolidated and tried together.
The legal test is set out in section 1 PHA 1997: a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of another.
The person whose course of conduct is in question “ought to know that it amounts to harassment of another” if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
This does not apply to a course of conduct if the person doing it can show that:
- it was in the purpose of preventing or detecting crime;
- that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; or
- in the circumstances the pursuit of the course of conduct was reasonable.
There is no statutory definition of harassment, however, whether conduct amounts to harassment is an objective test; defined by reference to the person whose course of conduct is in question, knowing that such conduct amounts to harassment of another. The definition of harassment includes alarming the person or causing them distress (Hayden v Dickenson [2020] EWHC 3291 (QB)). Section 7(4) PHA 1997 also makes clear that harassment may consist of speech, particularly where material is “genuinely offensive and unacceptable” as illustrated in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233.
To commit an offence under PHA 1997, the course of conduct must involve conduct on at least two occasions in relation to an individual, or if two or more persons, conduct on at least one occasion in relation to each of them. In Lau v DPP [2000] 1 FLR 799, the court held that proof of two incidents can be sufficient to constitute the offence, but the fewer the occasions and the wider they are spread the less likely it will be that a finding of harassment can reasonably be made. Incidents as far apart as a year could constitute a course of conduct and harassment (for example a threat to do something once a year on a person’s birthday), but when there have only been two incidents the court has to decide whether what happened on those two occasions could be described as a course of conduct.
It is necessary to prove that the conduct is unacceptable to a degree which would sustain criminal liability and also must be oppressive.
From a civil perspective, the court may grant an injunction under section 3 of the Act to restrain further harassment. The injunction may prohibit specific conduct or harassment generally, and the court also has the power to award damages for anxiety and financial loss caused by the harassment. Civil claims are governed by the Civil Procedure Rules, rather than the Family Procedure Rules. In addition, criminal courts may impose restraining orders following conviction to protect victims from further harassment or fear of violence.
Choosing the appropriate remedy
In practice, uncertainty often arises as to whether an application should be under the Family Law Act 1996 or pursued under the Protection from Harassment Act 1997.
The starting point is the relationship between the parties. Where the parties are associated persons and the conduct arises in a domestic context, a non-molestation order will often provide the most direct and effective protection. Where no qualifying relationship exists, or where the claimant seeks damages in addition to injunctive relief, the PHA 1997 may be the more appropriate route.
The table below summarises the key distinctions
| Non-Molestation Order (FLA 1996) | Protection from Harassment Act 1997 | |
| Purpose | To protect a person from molestation in a domestic context | To prohibit a course of conduct amounting to harassment |
| Legal test | Family Law Act 1996, s42: Order necessary to secure health, safety or well-being of the applicant or relevant child.
Focus is on risk and protection; not knowledge |
Protection from Harassment Act 1997: Course of conduct amounting to harassment which the defendant knew or ought to have known was harassment.
Objective test: reasonable person standard |
| Standard of proof | Balance of probabilities | Civil: balance of probabilities
Criminal: beyond reasonable doubt |
| Who can apply? | Only a “relevant person” (e.g. spouse, ex-partner, cohabitant, family member) | Any individual; no relationship is required |
| Type of behaviour | Molestation: violence, threats, intimidation, harassment, coercive or controlling behaviour
Can be granted for a single incident [often paired with occupation order] |
Harassment: repeated conduct causing alarm or distress
Requires at least 2 incidents |
| Defences | No defence | Statutory defences (crime prevention, lawful authority, reasonableness) |
| Order available | Non-molestation order under s42 FLA 1996 | Restraining order (criminal)
Civil injunction (section 3) |
| Duration | Time-limited but can be extended | Fixed or indefinite |
| Breach | Criminal offence | Restraining order: criminal offence
Civil injunction: contempt of court |
Conclusion
The differences between non-molestation orders under the FLA 1996 and remedies under the PHA 1997 are clear, notwithstanding their shared protective purpose. While both provide important safeguards, they operate in distinct legal contexts and pursue different aims. The appropriate mechanism will depend on the relationship between the parties, the nature of the behaviour complained of, and the level of protection required. Ultimately, the choice between the two is determined on a case-by-case basis, informed by the specific facts of the situation and the outcome sought.
16th February 2026 – Sajini Sridaran
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