Domestic abuse: how the court can help

The court can make orders designed to protect individuals and their children from certain types of behaviour. It can also put in place conditions to regulate who can and cannot occupy a home. We take a closer look at some of the remedies available to people dealing with an abusive partner and/or unacceptable levels of conflict in the family home.

The first thing to say is that if you feel threatened or think you might be in any danger, you should call the police. They will be able to take immediate action to deal with an imminent threat and thereafter investigate whether a crime has been committed. However, the family court can also help, whether or not the police have been involved.

Non-molestation orders

Under Part IV of the Family Law Act 1996, a person (“the applicant”) can apply to the court for a non-molestation order in order to prevent a current or former partner or family member (“the respondent”) from behaving towards them in a certain way. This is sometimes called an injunction but the correct term is a non-molestation order.

An application can be made either with or without notice to the respondent. Practically this means that an order can, if the circumstances justify it, be made without the respondent seeing the relevant paperwork or even knowing that the applicant intends to go to court. Orders can be made “without notice” if, for example, there is a risk that the applicant will suffer significant harm if the order is not made immediately, or, there is a risk that they will be put off from applying if the order is not made straightaway. The order will be worded in such a way as to allow the respondent to challenge it within a certain timescale if they feel it is not justified or they do not agree with some or all of the allegations made in support of the application.

A non-molestation order will typically state that the respondent cannot use or threaten violence against the applicant. This behaviour is illegal anyway but the order re-emphasises this to the respondent and immediately puts the police on notice that there is a history to the situation if they were to become involved subsequently.

A non-molestation order can also prohibit the respondent from doing certain things that are not necessarily criminal offences. This can include harassing the applicant, going within a certain distance of them, contacting the applicant via text, phone, social media, letters or face to face etc. The precise wording will depend on the situation and the evidence provided in support. Once the order is in place, it is a criminal offence for the respondent to disobey it. For this reason, the local police force must be notified and provided with a copy of the non-molestation order as soon as it has been received from the court.

Every case is different but before the court makes a non-molestation order it will expect to see recent, credible evidence of the respondent’s behaviour. The applicant will almost always provide a written statement in support of their application, detailing what the respondent has done and why they feel they need the protection of an order. This could include descriptions of acts or threats or violence, photographs and/or medical reports relating to any injuries sustained, descriptions of threatening behaviour, copies of harassing texts or messages received on social media.

If a person finds themselves on the receiving end of a non-molestation order it is very important that they take careful note of any timescales and deadlines within the order. Typically there will only be a short window in which the order can be challenged and any response to the allegations made in the application will need to be provided to the court quickly.

Failure to challenge an unjustified order can leave a respondent liable for the applicant’s legal costs and, perhaps more importantly, expose the respondent to the risk of criminal prosecution if they do something which would not ordinarily be illegal. For example, a non-molestation order could prohibit the respondent from going within 100m of the applicant. The respondent could be committing a crime if they breached this provision, even though this behaviour is not normally illegal.

Occupation orders

The courts can also make an order regulating the occupation of the family home, whether or not the couple in question were married/in a civil partnership. Occupation orders can:

  • exclude a person from a property they would normally be entitled to occupy
  • allow someone to move back into a property from which they have been excluded
  • designate certain parts of a house as being “off limits” for either party, whether that be all the time or at certain designated times

Occupation orders and non-molestation orders often go together. A person in need of the sort of protection offered by a non-molestation order will often need the court to make an order safeguarding their right to stay in a certain property and/or exclude the respondent from it. However, an occupation order can be made without a non-molestation order and vice versa.

The court must look at all the facts of the case and consider whether the type of order the applicant has asked for should be made. This will involve an analysis of all the evidence and consideration of the parties’ needs, their risk of suffering harm and their respective abilities to house themselves. The position of any relevant children is always at the forefront of the judge’s mind when making a decision.

As with non-molestation orders, an occupation order can be made with or without notice to the respondent. Unlike with non-molestation orders, the court will very rarely make an occupation order without hearing from the respondent and considering their evidence. The court has the power to make someone leave their own home if the circumstances justify it. This is a very dramatic action to take and is seldom taken without the court hearing from both sides first.

Although it is not a criminal offence for a person to breach the terms of an occupation order, they may be found in contempt of court for doing so, which can result in a fine or imprisonment. In addition, some occupation orders have a power of arrest attached to them, which means that a person suspected of breaching the order can be arrested and brought to court.

If you are on the receiving end of an occupation order or an application for one, you must take careful notice of any deadlines and timescales in the court documents and ensure that you attend any hearings that have been scheduled. Failure to do so could have severe financial and non-financial consequences.

Legal advice

Whether you are considering applying for a non-molestation order, an occupation order or are the respondent to such an application, it is important to take legal advice at every stage of the process.  If you have any questions about seeking protection from domestic abuse or about how an application for a non-molestation or occupation order might affect you and your family, please get in touch and ask to speak with a member of the family department.

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