Domestic violence solicitors in North Devon, Slee Blackwell, look at the types of court order that can help protect victims of domestic violence.
The law on Domestic Violence has change over recent years. A new offence of Coercive Control was introduced back in 2015 which broadened the definition of domestic violence substantially. The Domestic Abuse Bill was given its second reading in October 2019, bringing it one step closer to coming into law. The Bill sets out an ambitious range of objectives, including strengthening the justice system for victims of abuse and improving the support available to victims.
It remains to be seen what impact the new Bill will bring if and when it becomes law. In the meantime however, there are a range of protective orders already available to anyone experiencing domestic violence.
This Order is available to help protect victims of domestic violence from abuse perpetrated by one of the following:
- Current or former Spouse;
- Current or former Cohabitant, including same-sex couples;
- Family member(s);
- Someone with whom they are or have been in an intimate relationship.
The term ‘Molestation’ has a broad legal definition. Molestation can range from physical violence to harassment, and from bullying to mental cruelty. When the victim asks the Court for a Non-Molestation Order they must show that there is a genuine need for the Court’s protection. It is the solicitor’s job to detail this in the witness statement.
It is common for these applications to be made to the Court without Notice to the Respondent. In other words, applications are often made without the perpetrator’s knowledge. The victim should take comfort in the fact that they are able to apply for this Order without their abuser being aware. However, the Court will make a decision on whether or not notice should be given when they receive the application. The Court can insist that the Respondent is told about the application and receives a copy of that and the victim’s statement before the hearing.
If the order is made without notice to the Respondent he or she will be asked to attend a return hearing listed as soon as possible – usually within a week to ten days – to have their say before the court. A decision will then be made about whether or not the order should stay in place.
It will strengthen the victim’s case if the police have been recently involved or there has been a history of domestic abuse in the relationship. It will also help the victim’s case for Legal Aid to be granted. If Legal Aid is awarded it will enable the solicitor to carry out the required legal work on the victim’s behalf. Fear of legal fees should not therefore deter victims of domestic violence from seeking protection from the law (see our Article on Legal Aid for eligibility criteria).
Slee Blackwell are one of the leading domestic violence solicitors in North Devon and pride themselves on taking swift and decisive action when the circumstances arise.
Staff at our offices in North Devon (Barnstaple, Bideford, South Molton and Braunton) will aim to bring an application for a Non-Molestation Order before the Court within 24 hours of receiving instructions.
Once the Court has made a Non-Molestation Order, it does not become effective until it has been personally served upon the perpetrator. Once the Order has been served, the local police department are made aware that the Order is in place. If the perpetrator breaches a Non-Molestation Order they may be arrested and could be imprisoned for up to five years, fined, or both.
Non-Molestation Orders are usually made for a period of 12 months although this will differ depending on the circumstances of the case.
An Occupation Order can enforce someone’s right to remain where they are living or may result in someone having to leave the property they are living in. These applications can be complicated if you do not have a right to occupy the property. However, this doesn’t mean you cannot apply. It is essential to take proper legal advice before making an application to the court for an Occupation Order.
Occupation Orders often go together with Non-Molestation Orders and an application may be made for both using the same application form and statement. However, it is highly unusual for a Court to grant an Occupation Order without notice to the Respondent as it would affect the Respondent’s right to occupy the property and possibly leave them with nowhere else to go.
In deciding whether or not to make the Order the court uses the Balance of Harm Test. The court must consider if the harm caused to the Applicant (and any children) if the Order was not made would be greater than the harm caused to the Respondent if it was. If the court finds that the harm to the Applicant would be greater then it was a duty to make the order. If such a finding is not made then the court may still make the order using its own discretion. In that case the court will consider the resources of both parties, particularly other options for accommodation and how much money each has or has access to.
If you are suffering abuse that is significant and ongoing, our advice would be to seek alternative accommodation, secure a Non-molestation Order and pursue an Occupation Order through the Court. A power of arrest needs to be attached to an Occupation Order as security for the victim if it is breached.
Criminal courts have the power to grant Restraining Orders following any offence, even where someone is acquitted, in order to protect the victim. Breaking the terms of a Restraining Order is a criminal offence, punishable by up to five years in prison or a fine or both. A Restraining Order can only be granted during sentencing in the criminal court. The process of getting one is therefore slower than getting a Non-Molestation Order, although a Restraining Order is more likely to be made without an end date.
Domestic Violence Protection Notice / Order (DVPN / DVPO)
Domestic Violence Protection Notices / Orders came into force in 2014 to bridge the gap noted above where a victim is waiting for a longer-term injunction to be put in place. A DVPN may be issued by police attending a domestic violence incident, giving the victim immediate protection. The police must then apply to the Magistrates Court within 48 hours for a DVPO which continues that protection for up to 28 days. This gives the victim some breathing space to seek legal advice, assistance from Domestic Abuse support agencies and other services such as Housing or medical services.
Forced Marriage Protection Order (FMPO)
A Forced Marriage Protection Order, while focused on one particular area of the law, is part of the broader protection for victims of domestic violence. Like a Non-Molestation Order this can be applied for without notice to the Respondent. Unlike a Non-Molestation Order however, an FMPO does not have to be applied for by the person looking for protection. A relative or friend may apply on their behalf as may a professional from whom the individual has sought help. You do not have to be over 18 to apply for an FMPO.
Court appointed cross-examination advocates in domestic abuse cases
The Domestic Abuse Act 2021 now prohibits parties to domestic abuse hearings from cross-examining each other. The Act allows the court to appoint a “Qualified Legal Representative” to conduct the cross-examination, and North Devon domestic violence solicitor Jen Law has been appointed to undertake this role. The aim is to reduce the trauma that domestic abuse victims face in court, with the associated legal fees being paid from central funds.
If you are looking for experienced domestic violence solicitors in North Devon then please contact us on FREEPHONE 0333 888 0404 for an initial chat or email [email protected]