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THE Family law firm for England and Wales

Injunctions

DOMESTIC VIOLENCE

INFORMATION

This information page gives some information on the protection that you may get from the civil courts

If you need help in an emergency please call 999

There are two types of injunction order which may be applied for. These are a non-molestation order and/or occupation order.

Non-molestation

A non-molestation order usually forbids another party from

A. Using or attempting to use violence against you

B. Threatening harassing or pestering you

C. Communicating with you except through us

The order could also apply to children if they have also suffered

The Court will make such an order if there has been a recent use or threat of domestic violence. The term Domestic Violence has a wide meaning and includes harassment and verbal/emotional abuse amongst other things.

An application for non-molestation order may be made in one of two ways

i) Without Notice

A without notice application is made without the other party having been informed of the application Such an application can be made for example where there is a real and immediate danger of serious harm and it is not practicable to give notice of the hearing to the other party.

However, following the initial hearing, the Court would list the matter for a further hearing to enable the other party to be represented. In some cases a further hearing is not required and gives the opponent the option of returning to court which saves you from an other hearing

ii) With Notice

A with notice application is one whereby the other party is notified of the hearing.

Occupation order

An occupation order is where you want your opponent to leave the family home. This is application is harder to obtain as in effect you are asking the court to remove another person out if their home

An occupation order, in most circumstances, will be issued with notice unless circumstances are such that the continued occupation of the property by the opponent poses a risk of violence. Under these circumstances it is possible that the Court would issue the application without notice.

Breaches of this order is not an arrestable offence and you must contact us to make an application to the court for enforcement

Power of Arrest

From the 1^st July 2007 the government has implemented a further legislation which makes breaches of a non molestation injunction a criminal offence and hence a power of arrest is no longer required

What this means is that if the opponent breaches the non molestation injunction order in any way you should immediately telephone the police, who must then arrest the opponent without having firstly to obtain a warrant to do so, provided there is reasonable cause to believe that the order has been breached.

The police would then have to bring the opponent before a Judge within 24 hours (excluding Sundays, Christmas Day and Good Friday).

You may have to attend court to give evidence to the court that he has breached the order and this will be in open court

If there is a breach of the order and the police do not get involved you may wish to consider applying to the Court for committal to prison for contempt of Court. If this is necessary, an amendment to your Public Funding Certificate would be required to cover an application to commit.

Undertakings

If matters proceed to Court it maybe that the opponent is willing to give what is known as an “undertaking”.

An undertaking is a legally binding promise to the court not to use or attempt to use violence against you and/or the children or to threaten, harass or pester you and/or the children.

An undertaking can also be given to vacate the property by a certain date and time and not to return save for the purpose of contact or to collect belongings.

Undertakings can be advantageous to both parties as the opponent may feel that no admission has been made as to the truth of any allegations made and, by accepting such an undertaking you will avoid the trauma of a full Court hearing.

However because of the new legalisation criminalising breaches of injunctions the court may not accept undertakings

The court cannot accept this where it appears to the court that the opponent has used or threatened violence which will be the basis of your application in any way

If the terms of the undertaking are breached then you may apply to the Court for their committal to prison.

A Power of Arrest cannot be attached to an undertaking.

Unless the case is a serious one, it is unusual for a person to be committed to prison for a first breach of any undertaking/order.

Any order made or undertaking given with contain an expiry date. Should it be necessary an extension of the order or undertaking will need to be sought and should be addressed at the appropriate time.

If you do not wish to proceed with an injunction you can, of course, withdraw your application at any time. You must, however, contact us to let us know.

This would mean, however, that you will not have any protection from the opponent should matters deteriorate.

Criminal Harassment

The new Protection from Harassment Act came into force on 18^th June 1997. Although this is mainly intended as protection against stalkers it is sufficiently wide enough to cover domestic situations.

The Act provides that a person must not pursue a course of conduct which amounts to harassment of another and which they know or ought to know amounts to harassment, and it is a requirement that such “course of conduct” occurs on at least two occasions.

There is no definition of harassment contained in the Act although it does provide that harassment includes “ alarming a person or causing a person distress”.

You can ask the Police to ward the other party and they will do this if you give a statement setting out the harassment and that it is to an extent that the Police will take steps

If the other Party breaches this then the Police can arrest the other party and you should call your local station or 999 if it is an emergency

However as with all the information each case is different and you should contact us for specific advice

Phone : 0151 522 3410

Fax: 0151 522 3411

E-mail: legalteam@solicitorhelp.com