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Domestic Abuse - what protection can the Courts offer?

View profile for Gemma Kelsey
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Recent blogs by my colleagues Kim Lehal and Liz Headley have discussed in detail what domestic abuse is and what behaviour constitutes abuse, both physical and emotional but what help and protection is available?

Non-Molestation Orders

Known informally as family injunctions, these are Orders prohibiting a person from carrying out a particular type of behaviour e.g. harassment, intimidation, pestering and also prohibiting a person from being violent and abusive. The Order can also be made to prohibit a person from carrying out violence, being emotionally abusive and/or instructing a third party to do any of the above. They can also prohibit a person from attending within a certain distance of your home. These Orders are usually made for a fixed period of time and not indefinitely.

A Non-Molestation Order is an Order designed to protect a victim of domestic abuse and children.

Who can apply for these Orders?

These Orders cannot be applied for by anyone – they can only be applied for by a certain group of individuals known as ‘associated persons’. These Orders are effectively family law injunctions and intended to protect victims of domestic abuse. ‘Associated persons’ extends to husbands/wives, partners, co-habitants, certain relatives and people with which there has been a sexual relationship. These Orders cannot be applied for by or against friends, neighbours, members of extended family or an ex partner’s family.

If you are not able to bring an application for a Non-Molestation Order, you may have an application under the Protection from Harassment Act 1997.

What happens if I have a Non-Molestation Order and it is breached?

If a Non-Molestation Order is breached, the offence is punishable by up to a maximum of 5 years in prison.

Occupation Orders

An Occupation Order is an Order essentially compelling a person to leave a family home or restrict a person from entering certain parts of the home (zonal Occupation Order). The Order can only be made for up to 6 months and is designed to offer protection and reprieve from an abusive situation.

The Court needs to consider carefully any housing needs of the children, impact on both parties and also the housing needs of both parties when making these Orders.

Without notice/on notice applications

Both Non-Molestation Orders and Occupation Orders can be applied for in emergency circumstances and also on occasion, on a without notice basis (without the perpetrator knowing). This is often the case if there is a very significant risk of harm and/or a risk that if the perpetrator knew the victim was making an application he/she would apply pressure to withdraw the application or not to make it in the first place.

How do I fund these applications to the Court?

Legal aid is available for applications for Non-Molestation Orders and Occupation Orders. Unlike other areas of family law where legal aid is available but subject to a means assessment, there is no higher limit in respect of the means assessment relating to applications or Non-Molestation Orders and Occupation Orders. Your income and capital will still need to be assessed but this will not rule you out in terms of being financially eligible for legal aid for either of these Orders. The Legal Aid Agency also has to consider the merits of any application and the likelihood you will succeed at getting the Orders you apply for. Providing you can show your application is reasonable and with merit, you will get legal aid but you may be subject to a financial contribution from your income and capital, depending on your financial circumstances.

For further information in respect of applying for a Non-Molestation Order and/or Occupation Order please contact our specialist Family Law team.

Kim Lehal, Senior Associate - Rugby

Gemma Kelsey, Senior Associate - Banbury

We also offer bespoke support from our in-house counsellor and therapist, if you would like support please contact Liz Headley.