Breach, Enforcement and Orders: Four Things People Get Wrong

Family court forums are full of good intentions and confident advice. Some of it holds up. Some of it doesn't. Here are four assumptions we see repeated often, and what the actual legal position is.

Assumption: "Get a prohibited steps order with a penal notice, then the police have to get involved."

Reality: this mixes up two separate enforcement routes.

A non-molestation order works through the criminal system. Breaching one is a criminal offence under section 42A of the Family Law Act 1996. Police can arrest without a warrant, and the case can go to the CPS.

A prohibited steps order, even with a penal notice attached, is enforced through the civil court by an application for committal for contempt. That means a formal Part 18 application, personal service of the order, a separate hearing, and strict compliance with the Family Procedure Rules on penal notices. The police don't automatically step in, and a penal notice alone doesn't trigger arrest.

If you want police involvement on breach, a non-molestation order is the tool built for that. A prohibited steps order does something different: it stops a specific action being taken, and its teeth come from the court, not the police.

Assumption: "A non-molestation order will automatically enforce my child arrangements order."

Reality: no. These are two separate instruments. A non-molestation order only prohibits what it specifically says it prohibits. If you want it to cover things like no contact with the child or no approaching a particular address, that has to be drafted into the order itself. It doesn't inherit or enforce the terms of a child arrangements order just by existing alongside one.

Assumption: "My solicitor said to speak to my ex directly, so that must be the right approach even where there's a domestic abuse history."

Reality: not necessarily. Where there's evidence of domestic abuse, you are exempt from attending a MIAM under the Family Procedure Rules (rule 3.8), and the court must take the abuse into account when considering whether mediation or other non-court dispute resolution is appropriate. If you're being encouraged to communicate directly with a former abusive partner, it's worth asking your solicitor why, and whether that advice reflects the safeguarding position given your case history. You're entitled to query it.

Assumption: "If a non-molestation order was refused before, that reasoning still holds now."

Reality: not automatically. The test for whether a non-molestation order is necessary is about protecting health, safety and wellbeing, not a single fact like whether the other party knows your address. Circumstances change. What mattered to the court's decision the first time may no longer apply, and a fresh application looks at the situation as it stands now, not as it stood years ago.

Why this matters

None of this is about knowing everything yourself. It's about knowing which questions to ask, and not assuming that any single piece of advice, from a solicitor, a forum, or anyone else, is automatically complete or correctly applied to your situation. Enforcement law in this area has real procedural traps built into it. Getting the wrong order, or the wrong route to enforce the right order, can waste time you don't have.

If you're not sure which order fits your situation, or what a breach actually means in practice, that's exactly the kind of question a McKenzie Friend can help you work through before you're in front of a judge.

This article is general information only, not legal advice. Every case turns on its own facts. If you're dealing with a breach or considering an application, speak to a solicitor or a McKenzie Friend who can look at your specific circumstances.