Domestic Violence and Injunctions
My approach is completely objective and anti-discriminatory in that I recognise both men and women may be victims of domestic abuse. I can potentially help you to achieve the same outcome as a solicitor or barrister, but at a much lower rate due to lower overheads. It is possible I may be granted the 'Right of audience', that I may be able to address the judge/other side on your behalf but I would need to apply for permission from the judge first.
You may be eligible for public funding (Community Legal Services funding, or legal aid) to pay your legal costs if you are claiming benefits, or are on a low income and have little or no savings. (Your partner’s or husband’s income is not taken into account if you are taking legal action against him/her). Public funding is now very limited, may not always qualify for legal aid. However, you are advised to contact a firm who offers this service and can advise you about your eligibility.
1. TYPES OF INJUNCTIONS
There are two main types of injunction under the Family Law Act 1996:
A Non molestation order
An Occupation Order
A Non molestation order is an order preventing someone (often a partner ) from using or threatening violence against you or your child and from intimidating, harassing and pestering you .being violent or threatening you with violence.
An occupation order is an order that regulates who can live in the family home and if granted will order someone to leave the home , or allow you to return there to live if you have already left, or allows someone to only occupy certain parts of the home. The duration of the order depends upon the circumstances of your case. The court will make Depending on what rights you have to the property the court will be able to make certain orders for certain durations.
In cases of harassment we will often initially send a letter known as a letter before action but in cases of extreme violence and abuse it may be necessary to apply for an urgent injunction application without notice to the other party.
2. HOW TO APPLY FOR AN INJUNCTIONS
To apply for an injunction order you must be an ‘associated person’. This means you and your partner or ex-partner must be related or associated with each other in one of the following ways:
You are or have been married to each other
You are or have been in a civil partnership with each other
You are cohabitants or former cohabitants (including same sex couples)
You live or have lived in the same household
You are relatives
You have now or previously formally agreed to marry each other
You have a child together
Although not living together, you are in an “intimate relationship of significant duration”
You are both involved in the same family proceedings (e.g. divorce or child contact)
For those people not eligible to apply for an order under the Family Law Act, you may be able to apply for a civil injunction under the Protection from Harassment Act 1997.
In criminal proceedings the Court can attach a restraining order in criminal proceedings have been taken if the court believes you are likely to be at risk. Restraining orders may be more effective as they carry stronger penalties.
For an occupation order you either have to have a legal right to occupy the home ,as joint or sole tenant or owner of that home or you have to be or have been married to, or cohabiting with, an opposite-sex partner who is the owner or tenant. A ‘balance of harm’ test will be applied by the court when deciding to make the order or not. The court may make other related orders for example, relating to the payment of the rent or mortgage and maintaining the home.
3. APPLYING TO THE COURT
After an application has been made to the court if the matter is heard without notice and an order is made the order will need to be personally served (usually by a process server) on the other party and on at the police station if a power of arrest is attached. The case will be listed for a return date to be heard in detail with evidence if contested.
The other party known as the Respondent might agree to give an undertaking. This is a promise to the court, which if breached, carries a sentence of up to two years imprisonment. An undertaking would usually be in the same terms as the order you are asking for. The court will only accept an undertaking from if the judge is satisfied that it will protect you as well as a court order.
A breach an undertaking can still result in application to be committed to prison but a breach of an undertaking is not a criminal offence. A power of arrest cannot be attached to an undertaking, so you must make an application to the court for your opponent’s committal.
If the matter is contested or an undertaking cannot be accepted and it will not give sufficient protection the court will hear evidence and make a decision whether to grant the orders applied for. If the court believes that your opponent has used or threatened violence against you, or a child, a power of arrest will be attached to the order. If there is a power of arrest attached to the order and the opponent breaches the order, the police can arrest the person and they must be taken to the court within 24 hours of their arrest (excluding Sundays, Christmas day and Good Friday). The order made by the court must be personally served on the other person. You will also be given a copy, which you should keep safely. A copy of the order will also be lodged with the police. If the other person did not attend court, the order is not usually effective until it has been served.
If your opponent does breach the order you should contact the police as soon as possible. A breach of a non-molestation order, is a criminal offence punishable by a prison sentence of up to five years. If your opponent breaches an occupation order with a power of arrest attached , they can be arrested immediately and must be taken to the court within 24 hours to appear before a judge.
If your injunction order does not include a power of arrest and your opponent breaches the order you should consult us your solicitor as they may be able to apply to the court to have your opponent committed to prison.
Injunctions and Emergency Protection Orders are complex and often require an urgent application. It is essential to obtain specialist advice.
Accused of domestic
If you have been accused of committing domestic abuse against a partner or child, then we may be able to offer support and advice to help you.
It is important that if you have been served with Court papers for a hearing in the Family Court that you obtain advice as soon as possible, we can help you with these proceedings. You must be aware that if you do not attend that an Order may be made in your absence.
We cannot advise on criminal law cases and if you have been arrested or contacted by the Police, we recommend contacting your local Citizens Advice Bureau or find a criminal lawyer.
The information on this page is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more details or information about the matters referred to on these web page please seek independent formal legal advice. This information was correct at the time of going to press in September 2020.
The law in this area is subject to change, we cannot be held responsible if changes to the law outdated this publication. Links provided on our website are for your convenience. It does not imply reliability or endorsement by us, and we accept no liability in respect of the content.