treated with nothing but kindness and consideration
It is an extremely sad and occasionally tragic reality that there are many relationships where the behaviour of one or both parties to the relationship towards each other is abusive and dysfunctional. This has major implications upon the emotional, psychological and physical welfare of the victims, whether they are one of the parties or their children. Many professional organisations, particularly the police and locally, the North East Hampshire Domestic Violence Forum, offer invaluable assistance and protection to those suffering within abusive relationships. The local authority, with responsibility for the protection of children through the operation of their Children’s Services departments, may intervene where they believe there are children at risk of significant harm because of domestic abuse.
It is extremely important to understand that there is legal protection available, not just through the criminal law, but also through civil law, as set out in the Family Law Act 1996.
Non-Molestation and Occupation Orders
The most frequently sought court orders under the Family Law Act 1996 are known as non-molestation orders and occupation orders. A non-molestation order is an order prohibiting a person (“the respondent”) from molesting another person associated with the respondent or a relevant child.
The term “non-molestation” under the Family Law Act is frequently defined in court orders as using or threatening violence towards the applicant and molesting, harassing, pestering or otherwise interfering with the applicant. A non-molestation order can also strictly define the activities that a respondent can undertake in relation to an applicant and can prohibit the making of telephone calls, emails and the sending of text messages or the using of social media (e.g. Facebook, Twitter) to harass the applicant.
The relationship between the applicant and the respondent has to be one of close association and this will usually mean a relationship where the applicant and the respondent have been in an intimate relationship such as marriage, cohabitation, civil partnership or as partners, albeit not living together. An association can also involve parents, children and siblings.
If there is harassment of an individual by someone with whom they have not been in any form of family relationship, then the victim of that type of abuse would have to seek protection under the Protection from Harassment Act 1997.
In a situation where a victim of domestic abuse needs urgent and immediate protection from the respondent then they have the right to apply to the County Court for a non-molestation order. If the applicant and the respondent live together, occupying the same home, then the victim will probably be advised to also seek an occupation order. An occupation order is an order which can require the respondent to vacate a home shared with the applicant victim, or if the respondent has already vacated that property, an order prohibiting the respondent from returning to that home.
The court may make an initial court order prohibiting molestation when the respondent has not initially been given notice of the proceedings. This is known as a “without notice” application. A Judge will only make an order without notice to the respondent, in the most exceptional cases and only where it is “just and convenient” to do so. These would usually be cases where there is an immediate risk of grave and significant harm to the applicant or any relevant child and where the applicant will be deterred or prevented from pursuing such an application for protection if a court order is not made immediately.
It is the case that “without notice” orders are usually only made in cases of the need for immediate protection for non-molestation because of the human rights implications of making court orders in the absence of the person against whom the court order is made. In some situations, rather than make an order “without notice”, particularly in relation to an application for an occupation order, a judge will require the respondent to come to court on an “on notice” basis within 24 – 72 hours notice of the application upon him or her. Where an order has been made “without notice”, there must be a full hearing on notice to the respondent as soon as convenient thereafter. A “without notice” order will always make provision for review once the court order has been served. It is the duty of the court to list the matter for a full hearing as required by Section 45 of the Family Law Act 1996.
It is important to be aware that where a judge has made an occupation order, or where it appears to the court that the respondent has used or threatened violence against the applicant or relevant child, it can attach a power of arrest to that occupation order.
The situation is slightly different with a non-molestation order because breach of a non-molestation order is automatically an arrestable offence in criminal law. A non-molestation order is only effective after proper service of the order and, therefore, the police should not only be given a copy of the non-molestation order after it is made by the court, but also documentary evidence that the non-molestation order has been properly served on the respondent. Section 42A of the Family Law Act 1986 created the offence of breaching a non-molestation order.
In addition to the protection offered by civil law for victims of domestic abuse, it is also important that persons in need of protection have access to services for their own financial and therapeutic support as well as physical protection.
For further information available locally click here for the directory compiled by the North East Hampshire Domestic Violence Forum.
For advice on all these issues please contact Deborah Prance (Solicitor and Resolution trained Mediator), Andrew Kingston (Solicitor and Resolution Accredited Specialist), Tatjana Williamson (Solicitor and Resolution Member) or Amanda Dodge (Chartered Legal Executive and Resolution Member) on 01252 316316 for further information, or to arrange a meeting.