DOMESTIC ABUSE AND INJUNCTIONS
If you are suffering from abuse, threats, harassment, pestering or intimidation, it is possible to apply to the family courts for an injunction to help protect you and to ensure the safety and well being and health of you and your children.
There are two types of injunction:
- A Non-Molestation Injunction
- An Occupation Order
What is a non-molestation Injunction?
A Non-Molestation Injunction prohibits an “associated person” (please see below) from using or threatening violence against you or your children, or intimidating, harrassing or pestering you. It can contain very specific provisions depending on the particular type of behaviour you or your children are suffering from.
Who can apply – Associated Person
To apply for a Non-Molestation Injunction you must be an associated person, which means you must be related or associated with each other in one of the following ways:-
You are or have been married to each other or;
You are or have been in a civil partnership with each other or;
You are cohabiting with each other or used to cohabit with each other whilst in a relationship (including same sex couples) or;
You live or have lived in the same household or;
You are relatives or;
You agreed to marry each other, even if that agreement has now ended or;
You agreed to form a civil partnership, even if that agreement has now ended or;
Both of you are parents of, or have parental responsibility for, a child or;
One of you is a parent of a child and the other has parental responsibility for that child or;
10. You are having or have had an intimate relationship with the other person for a significant duration;
11. You have both been involved in the same family proceedings (for example divorce or child arrangements)
We will be able to advise you whether you can apply for a Non Molestation Injunction.
What is the procedure?
The person applying to Court for the Non Molestation Injunction (the “Applicant”) must complete a form and a witness statement setting out in detail what has taken place and why they need the Court’s protection.
Although usually the other person (the “Respondent”) is told if a Court application is being made, this will not be necessary if your safety or the safety of any children is at immediate risk.
When the Court receives your application, and provided yours or your children’s safety is not at immediate risk, it will fix a hearing to decide what should happen.
The Respondent will be served with your application and witness statement together with details of the Court hearing.
The Respondent may prepare a witness statement in response to yours.
If the Court decide to make an Order without the Respondent being served with the application due to an immediate risk, an ‘interim Non Molestation Order’ will be made by the Court, which will need to be personally served on the Respondent as soon as possible for the terms of the Order to take effect. The Order will also detail a return hearing date so that the Respondent has the opportunity to attend Court when the Court decides whether the Order should continue.
How does the court decide?
In deciding whether to make a Non Molestation Injunction, the Court considers the health (mental and physical), safety and well-being of the Applicant or any relevant child. It must be satisfied that there is evidence of abusive behaviour and that the applicant or children need protection from the Court. Abusive behaviour involves any form of physical, sexual, psychological or financial abuse or harassment that has a serious impact on the health and well-being of the Applicant or any relevant child. Abusive behaviour is not only defined as violent behaviour, it may be and is often other forms of behaviour.
Any Non-Molestation Injunction the Court makes will contain a list of things that the Respondent is prohibited from doing. The Order can last either for a specified period of time (usually 6 or 12 month) or if it is justified until further Order of the Court.
Breach of the Order
Breach of a Non-Molestation Injunction is an automatic criminal offence and provided you can prove that the Respondent was aware of the terms of the Order when it is breached, the police will arrest the abuser and bring them before the criminal courts.
When the Order has been made by the Court, we will arrange to personally serve the Respondent with the Order so you can prove that the Respondent is aware of the terms of the Order. We will also send a copy of the Order to your local police station so that they have a record of the Order made.
What is an Occupation Order?
An Occupation Order sets out who can live in the family home (or certain parts of it) and can also restrict someone from entering the area surrounding a home. An Occupation Order does not affect each person’s financial interest in the home, simply who can live in it.
Who can apply?
An “associated person” as detailed above can apply for an Occupation Order.
What is the procedure?
The person applying for an Occupation Order must complete a court form and provide a witness statement setting out in detail the reasons why they are seeking the Order. Usually, the papers will be sent to the Respondent, who has a chance to reply by preparing his or her own witness statement. The court will list a date and time for a hearing to decide what should happen.
How does the court decide?
The court applies different tests depending on the relationship status of the people involved and whether the Applicant has any legal right to occupy the home. For certain categories of Applicant, the court will apply a 'balance of harm' test, in which it balances whether any person or child is likely to suffer significant harm if an Order is or is not made. In other cases the court must exercise its discretion taking into account all the circumstances. The process is quite complex and we will be able to help you understand what applies in your situation.
The Occupation Order
The Order that the court makes will say who can live in the home and who is excluded from it. It can also impose obligations relating to the repair and maintenance of the home, or to payment of the rent or mortgage. The length of time for which the order will last depends on your particular circumstances and is usually 6 or 12 months, but may be renewable. An extension of an Occupation Order beyond 12 months is only possible if you have a legal right to occupy the property, for example, you lived there as your matrimonial home, you are the owner or co-owner of the property or tenant or co-tenant of the property.
Breach of the Order
Unlike a Non Molestation Injunction, Breach of an Occupation Order is not a criminal offence. If the Court accepts that the Respondent has been violent or has threatened violence against you, then a power of arrest must be attached to the order, allowing the police to arrest the person in breach. To ensure that the police are aware of the terms of the Order, a copy will be sent to your local police station and the police can then arrest the Respondent immediately if the Order is broken.
If no power of arrest is attached to the Order, then you will need to apply to the Court for an arrest warrant.
When considering either a Non-Molestation Injunction or an Occupation Order, it is possible to give Undertakings, which are binding promises to the Court, instead of having the Court make an Order. The difference is that breach of an Undertaking is contempt of court, which can be punished by fine, impose a suspended sentence or committal to prison, but it is not a criminal offence and no power of arrest can be attached. A further application would need to be made to the Court for breach of an Undertaking so that the Court can then consider which sanctions, if any, it should impose. We will be able to advise you whether an Undertaking is appropriate in your case.
At Fraser Brown, we understand that this is a traumatic time for our clients, and we work with you to guide you through the process and easily as possible. Contact our family department for more information or an initial discussion.