What behaviour amounts to harassment?

The breakdown of any relationship is difficult and it is not uncommon for a party to feel harassed or threatened by their former partner. In some cases it is appropriate for an order to be sought preventing further harassment or threats or indeed physical abuse. This is known as a non-molestation order under the Family Law Act 1996.

Where a court makes an order and it is breached, the court will usually impose a sanction for contempt of court. However, under s42 A of the Family Law Act breaching a non-molestation order is a criminal offence.

In the case of R v O’Neill [2016] the Court of Appeal recently considered what is meant by harassment for the purpose of ordering a non-molestation order. The judge hearing the case in the first instance defined harassment as causing alarm or distress. However, at the appeal hearing the appellant argued that the behaviour could only be harassing if it was oppressive, ie that the oppression involved something more than being unreasonable.

During the above appeal LJ Goss approved the definition of harassment as follows: “Harassment is generally understood to involve improper oppressive and unreasonable conduct that is targeted at an individual and calculated to produce alarm and distress”.

Is it now the case that if a non-molestation order is breached, it will only be enforced if the conduct is considered sufficiently serious to justify the intervention of criminal law? The standard of proof required in a criminal case being higher than that required by civil courts.

What is clear from the above that following the breakdown of a relationship, whilst comments may be traded between parties which are unpleasant, this is not sufficient for it to be considered harassment.