Unfortunately an individual may experience violence, abuse and/or harassment in their personal relationships which require legal intervention. The Home Office definition of domestic violence is:
“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts, assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”
Domestic Violence and Abuse Injunctions Legal Advice Birmingham
There are two types of injunction which are as follows:-
A non-molestation order which prohibits someone from using violence against another person, threatening them with violence or harassing, intimidating, pestering or molesting them. These orders can be extended to prevent the same action being inflicted on your children;
An occupation order which excludes one party from occupying the home or from coming within a stated radius of it.
If you are in immediate danger then you should always contact the police in the first instance, they may be able to assist but if not then you should contact a Family Solicitor about applying for one of the above orders which are also known as injunctions. If you need immediate protection then you can ask the Court to grant an emergency order. This means that the person that you are seeking protection from will not know that you have made the application and you will go to the first Court hearing without them being present. Any order that is made, together with the application still needs to be served on the other person as soon as possible after the hearing and any order will usually remain in place until the next hearing when the other person will be able to attend to give their version of events.
To apply for one of these orders you need to be or have been an associated person under the Family Law Act 1996. This means you must be applying for the order against:
Someone you are or have been married to;
Someone you are or have been in a civil partnership with;
A cohabitant or former cohabitant (a person to whom you are not or were not married but with whom you live or lived together as if you were married or civil partners).
Someone you had agreed to marry (but you must apply within 3 years of the engagement ending);
Someone you had agreed to enter into a civil partnership with(but you must apply within 3 years of the agreement to enter into a civil partnership ending);
Someone living in or who has lived in the same household (other than as your employee, tenant, lodger or boarder);
A person with whom you have never lived with or married but with whom you had an intimate relationship which is or was of significant duration;
The parent of your child;
The natural parent or grandparent of a child who has been adopted or has been freed for adoption.
Even if you do not fall into one of the above categories you may still be able to get a civil injunction under the Protection from Harassment Act 1997 to prevent harassment, stalking, pestering or threats. Also, if any criminal proceedings are brought then a Restraining Order can be made even where a conviction has not been upheld if the Court believes that a risk is posed.
How do I apply for an injunction?
Initially, we will meet with you to take details of the behaviour that is causing you concern. If we believe that you have grounds to obtain an injunction then we will complete the application form for you. The Court will require as much evidence of the behaviour as possible so we would suggest that if there are any police records or medical records that will be helpful. If you have any photographs of injuries or a record of what took place when then that will help us to put together as much evidence as possible to present your case to the Court. If you want to keep your address confidential then we can complete an application form asking the Court to give you permission to keep your address and telephone number private.
We will then arrange for your application forms and your evidence to be sent to the Court. The Court will then send a document known as a “Notice of Proceedings” allocating you a case number and telling you when the first hearing will take place in your case.
A copy of your application form and your witness statement will need to be served on the other person and we can arrange for that to be done. The Court will want to be sure that the other party is aware of the hearing date and the application so we will send a statement of service to the Court confirming that they have been personally served with the paperwork.
We will then go with you to the Court to represent you for the hearing. If you are worried about being threatened or abused in the waiting area we can ask the Court staff to arrange somewhere safe for you to sit.
Sometimes it is possible for the alleged perpetrator to offer a promise to the Court (known as an undertaking) in terms that they will not behave in the way that you have alleged. This undertaking will usually last for 6 to 12 months. It is not appropriate for an undertaking to be given in cases where violence has been used or threatened and you do not have to accept an undertaking if you do not want to. It can be more difficult to enforce an undertaking if the other party breaks the promises they have given as there will be no power or arrest attached to an undertaking in the same way that there would be if a Court order had been made.
The Court hearing will be in private meaning that usually only you, the other party, any interpreters and the legal representatives will be allowed to go into the Court room. The Judge will consider the evidence from both parties and will then make one of the following decisions:
The alleged perpetrator should provide an undertaking as above.
More information and evidence should be put together and you should both then return to Court for another hearing. This is likely to happen if the other party has not had the opportunity to put together a witness statement of their own or if more time is needed to get medical records or police records. If this happens the Court might make an interim (short term) order protecting you up until the date of the next hearing.
The Court will make a final order which is likely to last between 6 and 12 months.
In making its decision the Court will take account of a range of factors and they will look at the individual circumstances. The Judge will need to consider the likely effect of any order on the health, safety and wellbeing of you and the other party, your conduct in relation to each other, your needs, and your financial and housing resources.
After the hearing the Court will send a copy of any orders to us. This order needs to be served in person on the other party and we can arrange for this to be done. Again, the Court will want a statement of service so that they can be sure that the other party knows about the terms of the order that has been made against them.
Any order that has been made (and a copy of the statement of service) needs to be sent to the officer in charge of your local police station or a different police station if named in the order.
What if I need emergency protection?
In some cases the threat to a person is so imminent and real that the above process could take too long and jeopardise their safety. In these cases it is possible to ask the Court for an urgent hearing without telling the other party about your application or the hearing. We will still need to prepare an application and a witness statement for you containing all your evidence and we will ask the Court for something known as an “ex-parte” or “without notice” hearing.
At the hearing the Judge will consider your evidence and decide whether to grant a short term injunction. If the Judge agrees to do this the Court will provide a date for another hearing where the other party will be entitled to attend and put their case to the Court. After this first hearing it is imperative that the application, your witness statement and the order made by the Court are personally served on the other party and we can arrange for this to be done for you. We will ensure that a statement of service is sent to the Court as the Judge will want confirmation that the other party is aware of the next hearing and the order that has been made. The process will then continue as above, in that at the next hearing the Judge could either accept an undertaking from the other party, allow more time for evidence to be put together with there being a further hearing or they could make a final order there and then.
What if the other party does not comply with the injunction?
If your abuser continues to engage in the behaviour that has been prohibited by a non-molestation order then there are 2 courses of action available to you. Breach of a non-molestation order is an arrestable criminal offence and the order will clearly state that any breaches constitute a criminal offence punishable with up to 5 years imprisonment or as contempt of court.
Your options are to either:
Call the police and explain the breach of the order. It will then be dealt with as a criminal offence. This is usually the correct first port of call.
Return to the civil court that made the order in the first place and ask for the breach to be dealt with as a contempt of court.
If possible you should get any evidence of a breach of the order. If the police feel that they have sufficient evidence of the breach then the abuser can be arrested and the matter will be passed to the Crown Prosecution Service. In deciding whether or not to bring a prosecution the Crown Prosecution Service will take into account the consequences for you and any views expressed by you or your family. As above, a criminal conviction for breach of the order can lead to a sentence of up to 5 years imprisonment or a fine or both.
If you decide to return to the civil courts to deal with the breach of the order then the Court can issue a warrant for the person’s arrest. If the Court reaches the conclusion that the order has been breached then a sentence of up to 2 years imprisonment or a fine or both can be imposed.
Breach of an occupation order is not a criminal offence unless the Court has attached something known as a “power of arrest” to the order. The Court might attach a power of arrest in cases where violence has been used or threatened against the person making the application. If no power of arrest has been attached to the order then following a breach you can go back to the court and apply for a warrant of arrest. The Court will need evidence to show that there are reasonable grounds for them to believe that there has been a breach of the order. If a power of arrest has already been attached to the order then if the court finds that the order has been breached the other party could be sentenced to imprisonment of up to 2 years or a fine of up to £5,000.00 or both.
Whether you have an occupation order/non-molestation order or not, if you feel threatened by someone or you have been abused by someone you always have the right, in the first instance, to contact the police.
If you are worried about an abusive ex-partner or you have been the victim of domestic violence speak to one of our Family Solicitors at Sultan Lloyd Solicitors. We will guide you and help through the process of applying for a court order and attending at Court thereafter.
Domestic Abuse Advice from Specialist Family Solicitors in Birmingham, UK
Sultan Lloyd Solicitors is open from 9am till 5.30pm, Monday to Friday. Our office in Birmingham is convenient to Walsall, West Bromwich, Sutton, Solihull, Dudley, Aldridge, Halesowen and other local towns in The West Midlands and beyond. However, if you work full time and can’t see us during the week, we offer pre-arranged Saturday appointments for your convenience.