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Injunctions and Occupation Orders
Cases involving domestic violence can be highly emotive and require particularly sensitive handling as clients may have endured many years of abuse
Our Family Team can provide advice on injunctions and how to obtain an injunction as well as mediation, reconciliation or, where required, options for criminal prosecution. We can also provide advice on personal protection and harassment issues relating to neighbour or associated disputes.
CLIENT GUIDE TO INJUNCTIONS
If you are suffering from domestic abuse, harassment, threats and intimidation, you are able to make an application to the Family Court for protection. These types of Orders are known as "Injunction Orders". There are two types available:
- Non-Molestation Order – can prevent another person from harming you or a child
- Occupation Order – can indicate who can live in the family home and direct another person to leave the home
This is a Court Order preventing another person from using or threatening violence against you, intimidating, harassing or pestering you, or by encouraging any third party to behave in that manner on their behalf.
Under the Family Law Act 1996, applications for a Non-Molestation Order can only be made against someone that you are associated with. The relationships covered are:
- Married (currently or previously)
- Civil Partners (currently or previously)
- Cohabitants (currently or previously living with someone as though married or in a civil partnership)
- People living in the same household ( though not if they are an employee, tenant, lodger or boarder)
- Certain family relations • Fiancé(e)s (if the application is within 3 years of the agreement to marry ending)
- Both of you are parents of or have parental responsibility for a child
- One of you is a parent of a child and the other has parental responsibility
- You are having or have had an intimate personal relationship of significant duration
- Natural parent or grandparent of a child who has been adopted or freed for adoption
- Both parties to the same family proceedings
To apply for a Non-Molestation Order, you, the applicant, must complete a standard application form, and prepare a witness statement, setting out your allegations of abuse by the respondent in detail.
There is currently no fee payable to make the application to the court. You may keep your address confidential if is safer for you to do so. You must notify the Court if there are any children who are affected by the behaviour or the application.
When making a decision, the Court will primarily take into account the health and welfare (physically and emotionally) of any children involved. They must then decide whether the alleged incidents and/ or any children did happen. If the Court finds on a balance of probabilities that the incidents did happen, they will make a Non-Molestation Order.
The Order will list certain things that the respondent will be prohibited from doing. A power of arrest can be attached to the order. If the respondent's behaviour persists, breach of a Non-Molestation Order is a criminal offence, and the Police can arrest the respondent for disobeying the Order and the matter could go to court, and a prison sentence imposed.
An Occupation Order can be applied for at the same time as a Non-Molestation Order, or it can be applied for independently.
It is a Court Order stating who can live in the family home (or certain parts of it) and it can also restrict someone from entering the home, or coming within a specified distance of the property.
Again, an application can be made to the Court on a standard application form, together with a witness statement in support. An extra copy of the application will be required for any landlord or mortgage company.
The procedure is the same as that for a Non-Molestation Order.
When making a decision, the Court uses 2 tests. Firstly, a "balance of harm" test, in which it assesses whether someone is more likely to be at risk of harm if someone is in the property or not.
Secondly there is a Core criteria test. The criteria applied depend upon the applicant's entitlement to occupy the property and their relationship with the respondent. If entitled to occupy the criteria considered are:
- the housing needs and housing resources of each of the parties and of any relevant child;
- the financial resources of each of the parties;
- the likely effect of any order, or of any decision by the court not to exercise its powers, on the health, safety or well-being of the parties and of any relevant child; and
- the conduct of the parties in relation to each other and otherwise.
The orders can last for a specified period or until another order is made, The length will depend on the extent that the respondent will be affected. Where the order only has an impact on the respondent if they seek to break it then the court will be more minded to grant it for longer or even an indefinite period of time.
Documents must be served on the respondent personally. You cannot serve them yourself and it must be someone independent usually a professional process server. They will prepare a Statement of Service for the court confirming who was served, how and when. If you cannot show that the respondent has been personally served, you may not be able to enforce or punish any breach of the order.
If a non molestation order is granted or any other order with a power of arrest then a sealed copy of the order should be delivered to the officer in charge of the police station for your address. Without this the police will have no knowledge of the order and may therefore not be able to take action.
The court can consider applications immediately and without the other person being notified or served with any documents if there are exceptional reasons to do so. These are called "ex parte" or "without notice" applications. Any order which is made will still need to be served after the hearing to be effective.
If an order is made without notice to the other party a further appointment is listed by the court at which the respondent is entitled to attend and then the judge or magistrate will listen to both of you before deciding whether another order should be made.
When considering the making of a Non-Molestation or Occupation Order, the Respondent may offer an Undertaking to the Court not to behave in such a manner again, rather than having an Order made. If an Undertaking is given, this is a solemn promise to the Court. If it is breached, although not a criminal offence, it is contempt of Court, and can still be punishable by a prison sentence.
This guide is intended as an outline only of the procedure. For further advice and information please contact any member of the Family Team at Andrew & Co.
To speak to a member of the Family team and make an appointment, please phone us on 01522 512123 (Lincoln) or 01636 673743 (Newark).