Domestic abuse injunctions: Devon solicitor Grace Clark looks at Non-Molestation and Occupation Orders
It has been estimated by The Crime Survey for England and Wales that 5% of adults (6.9% of women and 3% of men) aged 16 years have experienced domestic abuse in a 12 month period. This equates to an estimated 2.4 million adults (1.7 million women and 699,000 men).
What is ‘domestic abuse’?
There is no strict legal definition of ‘domestic abuse’. However, the Family Court primarily recognises five different categories of domestic abuse, these being:
- psychological abuse;
- physical abuse;
- sexual abuse;
- emotional abuse; and
- financial abuse.
What can be done about domestic abuse?
For those who are being subjected to domestic abuse there are two types of domestic abuse injunctions that can be made by the Family Court to provide them with protection. The injunctions available are :-
- Non-Molestation Orders; and
- Occupation Orders.
What is a Non-Molestation Order?
A Non-Molestation Order is an Order made by the Court that prevents someone from having any unauthorised contact with the Applicant or any relevant child. Provided the Court is satisfied (on the balance of probabilities) that the its intervention is needed to give the Applicant protection, a Non-Molestation Order will be made.
The Court has the power to exclude an individual from an area, from contacting the Applicant either directly or through another party, from using or threatening violence against the Applicant or from damaging the property of the Applicant.
If a Non-Molestation Order is breached it is a criminal offence and carries a maximum sentence of five years imprisonment and a fine.
To enforce a Non-Molestation Order, criminal proceedings can be initiated by contacting the police or by starting civil proceedings by making an application back to the Family Court to ask that the Respondent is arrested and/or punished.
What is an Occupation Order?
An Occupation Order can prevent someone from living in a property. Where the parties continue to live under the same roof, it can also be used to limit the rooms they are able to enter or when they can enter certain rooms to access shared facilities.
The Court takes applications for Occupation Orders very seriously. Effectively, such an Order could make the Respondent homeless. For an Occupation Order to be made the ‘balance of harm’ test must be satisfied. This means the Court must consider the likelihood of significant harm to either party, and any relevant child, if an Order is made, balanced against the likelihood of significant harm if an Order is not made. The Court will also need to consider the parties financial resources and housing needs.
Occupation Orders do not automatically have a power of arrest attached to them, but this does not mean the Court cannot decide to attach a power of arrest. If an Occupation Order is breached, you need to go back to Court, as a breach would constitute contempt of Court.
Can I apply for a Non-Molestation Order or an Occupation Order against anyone?
In order to make an application to the Court for an Order the Respondent (the individual against whom the Order is sought) must be an ‘associated person’. This means that:-
- You are or have been married to the other party;
- You are or have been civil partners with the other party (an application cannot be made more than three years after the end of the civil partnership);
- You are or have cohabited with the other party (this does not include where you have lived with the other party as employer and employee or landlord and tenant);
- You and the other party are parties to the same family law proceedings;
- You have previously agreed to marry or enter into a civil partnership with the other party;
- You share the parental responsibility of a child with the other party;
- You are related to the other party; or
- You have had an intimate relationship with the other party.
In situations where a child has been adopted, two parties can be associated where they are : –
- The natural parent or grandparent and the adopted child; or
- The natural parent or grandparent and the adoptive parent.
If you are under the age of 16 you cannot apply for an order against an associated person. However, a parent or someone with parental responsibility can make an application on your behalf.
Does the Respondent need to know that I am making an application for an Order?
Where the safety of the Applicant is at stake or in situations where the Applicant may be deterred from making an application, the Court can make an Order on an “ex parte” or “without notice” basis. This means that the Court will make an Order without prior notification to the Respondent. However, the Court will set a date for a further hearing where the Respondent will be able to present their case.