Domestic Violence and Injunctions
Are you suffering from domestic violence and wanting to take action to protect yourself and/or your children?
What is domestic violence?
The Law Commission has said that “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”. Inter-marital rape is included in this definition. Single incidents do constitute domestic violence: there does not need to be a history or string of incidents.
How can the law help?
There are two Orders that a Court can make in respect of domestic violence. These are known as ‘injunctions’ and can be occupation orders or non-molestation orders.
This is an order made by the Court that can give you the right to live in your family home whilst removing the person who is committing the domestic abuse. If you have left your partner because if domestic violence, the Court can order that you be allowed to re-enter the home and that your partner be required to leave, and possibly that they be restricted from entering certain parts of the surrounding area. It can also make a statement of your rights to the property.
Occupation Orders are not frequently made by the Court because they involve removing a person with property rights from their home. More frequently applied are non-molestation orders.
This is an order that can stop your partner from molesting you. The Law Commission says that molestation “encompasses any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the Court”.
For both of these orders there are several factors that need to be applied for the Court to decide whether they should be made.
For both orders, you must have a right to apply. The law requires you to be an “associated person” to apply for either order. Below are set out the circumstances under which people are “associated” for the purposes of this area of law:
(a) they are or have been married to each other
(aa) they are or have been civil partners of each other
(b) they are cohabitants or former cohabitants
(c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
(d) they are relatives;
(e) they have agreed to marry one another (whether or not that agreement has been terminated)
(eza) they have entered into a civil partnership agreement (whether or not that agreement has been terminated)
(ea) they have or have had an intimate personal relationship with each other which is or was of significant duration;
(f) in relation to any child they are both persons who are parents of that child or they have or have had parental responsibility for that child;
(g) they are parties to the same family proceedings.
For an occupation order, it must be the case that the property from which you wish to remove your partner is or has been intended to be your mutual home.
Secondly, the Court will assess whether you or any child involved are at risk of ‘significant harm’ which is caused by the person you wish to have removed from your home.
If this is found to be the case, there is then a very important test called the ‘balance of harm’ test, which is applied when the Court are deciding whether or not to make an occupation order. Of course this is an important decision and they Court will not remove someone from their home unless they are convinced there is good cause to do so. In deciding this, they Court will look at any harm likely to be caused to you or any relevant child (a child living with you or likely to live with you) if an order is not made, compared to what harm is likely to be caused to your partner and any relevant child if an order is made.
Harm means ill-treatment or the impairment of health (and in relation to children impairment of development as well). The Court has guidance on how to assess this. The harm must be caused by the person you wish to remove and them alone.
If the result of the balance of harm test is not clear, the Court will look at issues such as the housing and financial needs, as well as conduct, of both parties. They will also consider the likely impact that not making an order will have on both parties.
There is a difference between what are known as ‘entitled’ applicants and ‘non-entitled’ applicants, with regard to how the law is applied. Your solicitor will go through this with you and establish whether or not you are ‘entitled’ to have an occupation order. This relates to rights with regard to the property and again the significance of removing someone who is entitled to live there from their home.
If you have enough property rights you are entitled and therefore if an order is made in your favour it can be for an indefinite period or for a set period. In these cases, if the balance of harm test is met the Court must make an order in your favour.
If you do not have sufficient property rights, more details of the relationship will be needed by the Court to make a decision, and the maximum period an order can be made for is 6 months, with a further 6 months being available on application to the Court (so an absolute maximum of 12 months). In these cases, if the balance of harm test is met the Court have a discretion (i.e. a choice) as to whether an order should be made.
The Court may if it sees fit attach a power of arrest to the order, so that if the order is breached the respondent may be arrested. This power may be attached to the order as a whole or only to certain provisions of the order, e.g. an exclusion zone provision.
The Court is more likely to issue a non-molestation order than an occupation order. This is because it does not remove as many rights from the other person.
Such an order can prevent a person from molesting you at all or from using particular forms of molestation (e.g. telephone calls, turning up at your property or workplace etc). It can be made for a specified period or until further notice.
To justify making an order, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant (who must be an associated person as discussed above) or any relevant child.
Breach of a non-molestation order is a criminal offence which can lead to fine and/or up to 5 years in prison.
Emergency applications can be made for both of these injunctions. If you are entitled to Legal Help we can arrange for something called Devolved Powers to be brought into effect. This is where we can start proceedings before we obtain funding from the Legal Services Commission, and they provide funding retrospectively.
In certain circumstances both these order can be made ex parte. This means that they are made without notifying the respondent. This happens only when the Court sees it as fair to do so, and after considering the a risk of harm to you or a relevant child, the chances of you being prevented from making an application through the normal route, and the possibility that the respondent is deliberately evading being served with the order.