Breach of a Non-Molestation Order: Sentencing, Defences & What to Expect (2026)

In Brief

Breaching a non-molestation order is a criminal offence under Section 42A of the Family Law Act 1996, carrying a maximum sentence of five years’ imprisonment. Even seemingly minor contact – such as a single text message or a social media interaction – can result in arrest and prosecution.

If you have been accused of breaching a non-molestation order, understanding the sentencing guidelines, available defences, and what to expect from the legal process is essential. This guide covers the law as it stands in 2026. If you are facing allegations, you should seek specialist legal advice immediately.

What Is a Non-Molestation Order?

A non-molestation order is a protective order made under the Family Law Act 1996. It prohibits the respondent from engaging in violent, threatening, intimidating, or harassing behaviour towards the applicant – including contacting them directly or indirectly.

These orders are granted by the family court and can be made on a without-notice basis, meaning the respondent may not know about the application until after the order is made. A return hearing is normally scheduled within 14 days. The order may extend protections to relevant children and can prevent the respondent from instructing third parties to carry out prohibited behaviour.

What Constitutes a Breach of a Non-Molestation Order?

A breach occurs where a person, without reasonable excuse, does anything they are prohibited from doing by the order. Common examples include:

• Direct contact – phoning, texting, emailing, or writing to the protected person
• Indirect contact – asking a friend, family member, or third party to pass on messages
• Social media contact – sending messages, commenting on posts, or creating new accounts to circumvent blocks
• Physical proximity – attending the protected person’s home, workplace, or school (if the order includes an exclusion zone)
• Threats or intimidation – making threats of violence or engaging in controlling or coercive behaviour
• Contact through child arrangements – using contact with shared children as a pretext to communicate with the protected person

It is important to note that breaching an order does not require any actual harm to have been caused. Simply making contact in a way the order prohibits is enough to constitute a criminal offence.

Is Breaching a Non-Molestation Order a Criminal Offence?

Yes. Since the Domestic Violence, Crime and Victims Act 2004 (which inserted Section 42A into the Family Law Act 1996), breaching a non-molestation order has been a criminal offence. The prosecution must prove that:

1. A valid non-molestation order was in place
2. The defendant was aware of the existence of the order (and, in practice, its relevant terms)
3. The defendant, without reasonable excuse, did something prohibited by the order

The offence is triable either way, meaning it can be heard in either the Magistrates’ Court or the Crown Court depending on the seriousness of the breach.

Because the maximum sentence is five years’ imprisonment, the police have a power of arrest without warrant for suspected breaches or have a separate power of arrest attached to the order.

A breach of a non-molestation order is both a criminal offence and a contempt of court. In practice, criminal proceedings usually take precedence, but where the CPS does not prosecute, enforcement may still be pursued through civil committal proceedings. A person cannot be punished both in the criminal courts and for contempt of court in civil proceedings for the same breach.

Sentencing Guidelines for Breach of a Non-Molestation Order

The Sentencing Council publishes guidelines for breach of a protective order (covering both restraining orders and non-molestation orders). The maximum sentence is five years’ custody in the Crown Court. In the Magistrates’ Court, the maximum custodial sentence is 12 months (increased from six months in November 2024 for either-way offences). The overall sentencing range is from a fine to several years’ custody, depending on culpability and harm.

Culpability

The court assesses the offender’s intention and motivation:

Harm

The court considers the level of harm or distress caused:

The combination of culpability and harm determines the starting point and sentencing range. For example, a Category A culpability / Category 1 harm case would carry a starting point towards the top of the range, while a Category C / Category 3 combination might result in a community order or fine.

Aggravating and Mitigating Factors

When sentencing, the court considers factors that increase or reduce the seriousness of the offence.

Aggravating Factors

• Previous convictions, particularly for similar offences or domestic abuse
• Breach committed while on bail for another offence
• Breach occurring shortly after the order was made
• History of disobedience to court orders
• Additional criminal offences committed during the breach (e.g., assault, criminal damage)
• Impact on children, family members or other vulnerable individuals
• Deliberate steps to prevent the victim from reporting the breach
• Using child contact arrangements to facilitate the breach
• Victim or protected person forced to leave their home as a result

Mitigating Factors

• Lengthy period of compliance before the breach
• Voluntary admission of the breach or prompt surrender to police
• Youth or immaturity of the offender
• Mental health conditions or learning disabilities where linked to breach
• Sole or primary carer for dependent relatives
• Breach was not initiated by the offender

What Defences Are Available?

The only statutory defence to a charge of breaching a non-molestation order is reasonable excuse. The burden of proof falls on the defendant to show, on the balance of probabilities, that there was a reasonable excuse for their actions.

What Might Amount to a Reasonable Excuse?

Courts interpret “reasonable excuse” quite strictly, but examples that have been considered include:

• Genuine emergency – for example, needing to contact the protected person about a medical emergency involving a shared child
• Lack of awareness – the defendant did not know the order existed (e.g., a without-notice order that was not properly served)
• Ambiguity in the order – the terms of the order were unclear and the defendant’s actions fell into a grey area
• Contact initiated by the applicant – the protected person contacted the defendant first. While this does not automatically provide a defence, it may support a reasonable excuse argument in certain circumstances

It is important to understand that even if the person who obtained the order invites contact, the respondent can still be prosecuted for breaching it. The order binds the respondent, not the applicant. If the applicant is persistently making contact, the correct course of action is to apply to the court to have the order varied or discharged – not to respond.

Other Defence Strategies

Beyond reasonable excuse, a solicitor may also challenge:

• Service of the order – if the order was not properly served, the defendant may not have been aware of it
• Insufficient evidence – questioning whether the alleged breach actually occurred
• Identity – disputing that the defendant was the person who carried out the breach

The threshold for a “reasonable excuse” is relatively high, and courts will assess the circumstances carefully.

Non-Molestation Order vs Restraining Order: What Is the Difference?

These two types of protective order are often confused, but they differ in important ways:

Both orders carry the same maximum penalty for breach. If you are subject to either type of order, understanding the specific terms and restrictions is critical. A breach of either order is a serious criminal offence.

What to Do If You Are Accused of Breaching a Non-Molestation Order

If you have been arrested or are under investigation for breaching a non-molestation order, taking the right steps early can make a significant difference to the outcome of your case.

1. Exercise your right to a solicitor – You are entitled to free legal advice at the police station. Do not answer questions without a solicitor present.
2. Do not contact the protected person – Even if you believe the allegation is false, any further contact could result in additional charges.
3. Preserve evidence – Keep copies of any messages, call logs, or other evidence that may support your case. If the applicant initiated contact, save that evidence.
4. Understand the order – Make sure you have a copy of the order and understand exactly what it prohibits.
5. Seek specialist defence representation – Breach of a non-molestation order is a criminal charge that could result in a prison sentence and a criminal record. Specialist criminal defence solicitors can advise on the strength of the evidence, available defences, and the likely outcome.

Speak to a Specialist Criminal Defence Solicitor

If you are facing an allegation of breaching a non-molestation order, JD Spicer Zeb Solicitors can help. Our experienced criminal defence team provides expert representation at the police station, Magistrates’ Court, and Crown Court.

We offer free initial consultations and 24/7 emergency legal advice. Contact us today:

• Central London Office: 020 7624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.

Frequently Asked Questions

Can I go to prison for breaching a non-molestation order?

Yes. Breaching a non-molestation order is a criminal offence carrying a maximum sentence of five years’ imprisonment. Even a first-time breach can result in custody, depending on the severity of the breach and any aggravating factors.

What happens if the person who took out the order contacts me?

Even if the applicant initiates contact, the non-molestation order still applies to you. Responding could still constitute a breach. If the applicant is repeatedly contacting you, keep a record of all contact and ask your solicitor to apply to the court to vary or discharge the order.

How long does a non-molestation order last?

Non-molestation orders can be made for a specified period or until further order. The order remains enforceable until it expires or is formally discharged by the court, regardless of whether the applicant says they no longer want it.

Can a non-molestation order be removed or varied?

Yes. Either party can apply to the family court to have the order varied (changed) or discharged (cancelled). This might be appropriate if circumstances have changed significantly, for example if the parties have reconciled or if the order is interfering with legitimate child contact arrangements.

Is a non-molestation order the same as a restraining order?

No. A non-molestation order is made by the family court under the Family Law Act 1996, usually on application by the victim. A restraining order is imposed by the criminal court under the Protection from Harassment Act 1997, following conviction or acquittal. Both carry a maximum penalty of five years’ imprisonment for breach.

Will a breach of a non-molestation order show on my criminal record?

The non-molestation order itself does not appear on your criminal record. However, if you are convicted of breaching the order, the conviction will appear on your criminal record and may be disclosed on DBS checks. This could affect future employment, travel, and other aspects of your life.

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