New guidance from the President of the Family Division simplifies and modernises the law on Protective Injunctions

On January 12th 2026, Sir Andrew McFarlane, President of the Family Division, published new guidance on Non-Molestation and Occupation orders which replaces the 2023 guidance.

The Guidance covered a wide range of issues, but most notably:

1. Ex Parte (without notice) Orders

The Family Courts have power through the Family Law Act 1996 to make orders without giving any notice to the respondent, as an important protective measure for victims of domestic violence. Courts are only allowed to make such orders if they are "just and convenient".

In the 12th January guidance, it was stated that in considering whether an order is "just and convenient", the court must have regard to a modern understanding of domestic abuse, including coercive and controlling behaviour.

For example, if the court considers it likely an applicant would be coerced into withdrawing the application should they have to give notice to the respondent, the court may be minded to make an ex parte order. Previously, courts would tend towards identifying a risk that the applicant would be threatened or pressured into withdrawing an application should notice be given, but in light of this guidance, courts are reminded to consider all types of physical, mental and emotional abuse.

However, the guidance nonetheless reminds courts that these orders should only be made in exceptional circumstances as they prevent the fundamental rights of the respondent without giving them any possibility to refute evidence put against them. If the order would serve to bar a respondent from their home or place of work, the courts must give such applications "very careful consideration" to prevent an excessive infringement on their rights.

2. Wording of orders

It is a well established principle in Family Law Act (injunction) proceedings that any orders made must be:

a) Protective

b) Capable of being understood by the applicant and respondent

c) Proportionate

d) Readily enforceable

The Guidance highlights that, for example, an order which forbids "threats and harassment" is vague and unnecessary. A better order would simply prohibit the respondent contacting the applicant directly, indirectly, or through third parties.

Similarly, orders like "the respondent must not come within 100 meters of the applicant's home" should not be used - for clarity to the respondent, specific road and place names should be used.

This assists with both the enforcement and simplicity of orders that is required under (b) and (d).

3. Right to set aside

The Guidance also notes that any without orders must make it very clear to the respondent that they are entitled to apply to the court to set aside the order under FPR 18.10(3). It must state, on the face of the order, that the respondent can apply before the set return date. If such an application is made, the court must list the hearing to determine it immediately, and within a few days at most. This serves to protect respondents who have been unjustly prevented from accessing their home or place of work without the possibility of objecting to the order.

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Overall, we are happy to see the updated guidance that reminds courts the importance of simplifying the procedure for protecting vulnerable individuals and ensuring the courts are widely accessible to all. It is also good to see the courts giving express consideration to all kinds of domestic abuse, including violence and threats but also financial, emotional and mental control and coercion.