Law Report: Invasion of privacy did not amount to molestation

A molestation order under section 42 of the Family Law Act 1996 should only be granted where there was some conduct which clearly harassed and affected the applicant to such a degree that the court's intervention was called for, and was not appropriate to prevent an invasion of the applicant's privacy by the publication of material which he feared might damage his reputation.

C v C; Family Division (Sir Stephen Brown, President) 11 November 1997

The court refused the applicant's application for a non-molestation order against his former wife under section 42 of the Family Law Act 1996.

The complaint giving rise to the application was that the People newspaper had published an article which related to the marriage and relationship between the applicant and his former wife. A few days later a similar article was published in the Daily Mail, purporting to give details of complaints about the applicant's conduct made by two former wives.

Richard Todd (Mills & Reeve, Norwich) for the applicant; John A Elvidge (Bennett Taylor Tyrell) for the respondent.

Sir Stephen Brown P said that as a result of the publication of those articles, the applicant had been granted an ex parte order in the following terms:

It is ordered that the respondent wife, whether by herself or by instructing or encouraging any other person so to do, be forbidden to harass, pester or annoy the applicant, in particular: (i) by procuring or seeking to procure the publication

of any account of the events which

have occurred during the marriage of the applicant and the respondent in relation to their personal and/or financial affairs; (ii) by procuring or seeking to procure the publication of any information which is calculated to prejudice or otherwise adversely affect: (a) the determination by this court of the financial issues between the parties; (b) and/or the [charitable] Trust of which the applicant is president.

The matter had now come before the court inter partes. The respondent submitted that there was no jurisdiction within the provisions of section 42 of the 1996 Act to grant a molestation order on the facts of the present case.

There was no legal definition of "molestation". It was a matter which had to be considered in relation to the particular facts of particular cases. It implied some quite deliberate conduct which was aimed at a high degree of harassment of the other party, so as to justify the intervention of the court.

Endeavours had been made to widen the concept of molestation, but it did not include enforcing an invasion of privacy per se. It was significant that section 42 was to be found in Part IV of the Family Law Act 1996, which was concerned with the general topic of domestic violence. In this particular case, the marriage between the parties had been finally ended; they were quite separate individuals, and the material complained of was some alleged revelations by the former wife of what she regarded as her husband's misconduct.

That came nowhere near molestation as envisaged by section 42 of the 1996 Act. The present application was a misconceived endeavour to seek to impose what might be called a gagging order, or indeed to prevent the press from publishing information which, because it related to somebody who was or had been in the public eye, might be considered to have some general interest. The freedom of the press was not directly involved in the matter, but it was in the background.

Furthermore, what was being sought was an interlocutory injunction in terms which were far too wide. It would embrace a purely factual account of matters being published whether or not it was offensive or un- flattering to the applicant. The present case was not one in which an order under section 42 could or should be made. The ex parte injunction was discharged.

- Kate O'Hanlon, Barrister