P v O

An application to vary a non-molestation order should be assessed against the protected person’s genuine and current wishes, where those wishes are clearly evidenced. Where the protected person does not wish to communicate, and an existing solicitor-controlled channel remains acceptable, there is no proper basis for enlarging the permitted means of contact. The court should not direct a futile or redundant exercise involving overseas police services, particularly where a separate and more stringent order already prohibits contact.

The applicant father sought to vary a 2015 non-molestation order so that communication with his adult daughter could take place through additional channels, including possible involvement by the Australian police. The application was issued in October 2018 and came before the High Court after directions for service and evidence.

The daughter communicated through the respondent mother’s solicitors that she wanted no contact from the father at that time, while retaining the solicitor-controlled communication mechanism in the existing order. A separate violent offender order made by Bexley Magistrates’ Court prohibited contact with the mother and daughter until May 2021. The central issue was whether the evidence justified varying paragraph 1(d) of the existing non-molestation order.

1. The application to vary paragraph 1(d) of the April 2015 non-molestation order was dismissed.
2. The court accepted the daughter’s email and letter, exhibited to the solicitor’s statement, as genuine communications expressing her true wishes. There was no reason to treat them as anything other than reliable evidence of her current position.
3. The daughter did not wish to receive any direct or indirect communication from the father at that time. She also made clear that the solicitor-controlled channel specified in the existing order remained the only channel through which she would accept or make communication.
4. In those circumstances, there was no basis for varying the order. The court considered that variation would be wholly inappropriate because it would enlarge the available means of contact contrary to the daughter’s expressed wishes.
5. The proposed involvement of the Australian police would have been an entirely sterile or redundant exercise. An effective existing means of communication was already available through the solicitors.
6. The court also noted that the separate violent offender order made under Criminal Justice and Immigration Act 2008, s.100, was stricter than the family order and prohibited contact altogether. Varying the family order would therefore provide no practical advance in the applicant’s position.