What Does ‘Molestation’ Mean? Court of Appeal Test Case

Non-molestation orders are an effective means by which the courts protect the vulnerable – but what exactly does ‘molestation’ mean? The Court of Appeal tackled that issue in a family case concerning a little girl in long-term foster care whose desperate parents persisted in trying to make contact with her.

The mother and the father, who had a criminal record involving serious violence, had never accepted a judge’s decision to take their daughter into care. The mother in particular had shown dogged determination to have the girl returned to her and had served an 18-month prison sentence for conspiring to abduct the child.

Despite that, the mother had persisted in leaving messages for her daughter outside her foster home and school and had been seen in the area where she lived on more than 30 occasions. The parents’ activities had made it necessary for the child to be moved from two previous foster homes and there remained concerns that the parents would attempt to abduct her.

At a local authority’s behest, a family judge issued an injunction against the parents that forbade them from entering a broad exclusion zone around the foster home. The judge, however, refused to make a non-molestation order under the Family Law Act 1996 on the basis that the parents had had no direct interaction with the child or the foster parents. The child had not seen them, spoken to them or in fact received any communication from them.

In upholding an appeal brought by the council, however, the Court found that, in threatening their daughter’s foster placement, the parents’ conduct had been positively harmful to the child and amounted to molestation. The Court issued a non-molestation order, which would have more teeth than the injunction in that breaching it would be a criminal offence and expose the parents to arrest.