What are the protective measures against domestic abuse?
There are a number of protective measures within UK Criminal, Civil and Public Law courts.
There is a range of relief available for those who suffer domestic abuse including help at a women’s shelter (for emergency protection). The main focus however is to secure statutory protection. This can be achieved via designated domestic violence courts, domestic violence protection notices and orders, and a multi agency approach.
The more practical and common protective measures however are the civil remedies which include (but are not limited to) non-molestation orders for the protection of the applicant and children. When deciding applications, courts can either make provisions for occupation or exclusion based on the circumstances of the case.
Non-Molestation Orders (NMO)
A non-molestation order (NMO), as stated above, is a court order made for the protection of the applicant and children. Molestation in this respect is defined as violence or any threats of violence or pestering behaviour (i.e. nuisance phone calls, text messages etc.) towards either you or your children.
A non-molestation order can be made for a specified period or until a further order is made. The order itself may contain either or both provisions; prohibiting the respondent from causing violence, threat or harm against a person associated with the respondent; or prohibiting the respondent from causing violence, threat or harm against a relevant child.
To succeed with a non-molestation order, there must be a genuine need for the protection. The factors taken into consideration by the court when dealing with a non-molestation order include any or all circumstances presented, the most important of which are the health (physical and mental) and safety or well-being of the applicant and/or child.
Occupation Orders
The purpose of an occupation order is to regulate the occupation of family homes and there are two types; occupation provision, and exclusion provision.
Occupation Provision
An applicant may request an order for occupation if they are already in occupation and have a right NOT to be excluded from the home or a part of it. Alternatively, if the applicant is not in occupation they will have a right to enter and occupy the home.
Exclusion Provision
Contrary to occupation orders, an exclusion order may prohibit, suspend or restrict the respondents existing rights to occupy the home. For example, requiring the respondent to either leave the whole home or part of it. It can exclude the respondent from a specified area around the home.
Right to Occupy
Both types of orders (occupation or exclusion) will raise questions about the right to occupy and who actually has it.
The balance of harm test is applied; the court shall make an order if it appears that the applicant or child is likely to suffer harm due to the respondent’s conduct if the order is not made, unless the respondent will suffer greater harm if the order is made.
What does the court take into account?
The courts, when considering an application for an occupation or exclusion order, will take into account the housing needs and resources of all parties, in particular respective financial resources.
The courts also consider highly, the likely effect of an order or no order, on the health, safety or well-being of the applicant, respondent or child.
Lastly, the courts will closely consider the conduct of parties in the proceedings.
Who can apply for the protective measures against domestic abuse?
Section 62 of the Family Law Act 1996 introduced and defined the concept of ‘associated persons’ who can apply for either order mentioned above for and on behalf of the applicant.
A wide range of persons can help the applicant to apply and it covers most family situations. This includes spouses or former spouses, civil partner or former civil partner, cohabitant or former cohabitant, other people who have lived in the same household, relatives and even those that have agreed to marry or enter into a civil partnership.
Children (under 18) can apply for either order in their own right but if they are under 16 they need the courts permission to apply for the order first, and permission of the court is only given if the court is satisfied the child has sufficient understanding to make the relevant order.
Public Funding
There are several public funding options for people experiencing domestic abuse, especially with regards to legal representation at court for either type of order mentioned above. Public funding for legal representation is determined by the prospects of obtaining an order, for example, where the chances of success are at least 50% or above.
Urgent Applications
You can also receive public funding for emergency situations, where the order is required relatively quickly for example. In this situation, an application can be made ex parte which means without giving prior notice to the Respondent.
Evidence will be heard from the applicant to decide whether the order can be made. Alternatively, if the court decides that the respondent should be given notice of the proceedings to give evidence as may be necessary, they may set a return date with 2 days notice to the respondent.
Enforcement
If an order is breached by the Respondent, there are a number of options in relation to enforcement.
Breaching a non-molestation order is a criminal offence and is usually punishable as a criminal procedure. The Crown Prosecution Service (CPS) will be responsible for the case and the punishment will depend on the criminal procedures in either magistrates or crown court.
A breach of an occupation order can lead to arrest of the respondent if the original order attached a power of arrest.
If so, a warrant of arrest will be sent to the local police to bring the respondent before the family court within 48 hours. Contempt of court proceedings will take place and the court will decide whether the order has been breached.
Where there is no power of arrest, the applicant must prove that the order has been breached to obtain a warrant of arrest first. If proven, the respondent will be brought before the court by the police to explain the breach.
