Injunctions against domestic abuse Fact Sheet
We can assist you in a wide range options for resolving your family law issues
1. WHAT IS AN INJUNCTION?
An injunction is a court order that a named person should or should not do something. Usually, in family law, people want injunctions against a husband, wife or partner. However, we may be able to apply for an order against anyone in your family, or with whom you have had a close relationship, who has used violence against you. You can also seek protection for your child.
2. WHAT ORDERS CAN I GET?
There are two basic types of injunction the court can make under the Family Law Act 1996:
2.1) A NON MOLESTATION ORDER
This is an order forbidding someone from being violent or threatening you with violence. The order will usually say that a named person is forbidden from using or threatening violence against you, pestering, intimidating or harassing you.
2.2) AN OCCUPATION ORDER
This is an order that someone must leave the home where you live, or allow you to return there if you have already left, or is only allowed to occupy certain parts of the home. The duration of the order depends upon the circumstances of your case. The court will make different orders depending on what rights you have to the property - for example whether you are a lodger or an owner-occupier - and the relationship between you and the other person, known as the Respondent. It will also consider the needs of any children. Your solicitor will advise you about your individual situation.
3. WHO CAN APPLY?
Any person can apply who has experienced violence, abuse or threatening behaviour from another person who is an ‘associated person’. An associated person is usually either a relative or a person with whom you have had a close personal relationship, whether or not you have married or co-habited. You can apply for yourself or on behalf of a child. Often, it is helpful for a letter to be written to the Respondent before court proceedings are started. We call this a 'letter before action'.
4. WHAT HAPPENS WHEN I APPLY FOR AN INJUNCTION?
4.1) TAKING YOUR STATEMENT
At the first appointment, your solicitor will take a full statement from you. We will need to take a history of your relationship and details of recent incidents between the Respondent and yourself. Your solicitor may ask you for your written authority, for example, to write to your doctor, the hospital or the police for a report.
4.2 ) PREPARATION OF DOCUMENTS
Your application will be prepared by your solicitor, along with a statement, setting out all the relevant facts of your case. If there are witnesses, your solicitor may also wish to see them to take statements so that further affidavits can be prepared and sworn by them. The application will then be taken by us to the court and a hearing date fixed. This is likely to be about a week ahead, unless your case is so urgent that a hearing the same day is required.
4.3) SERVICE ON THE OTHER PERSON
Once the application has been issued and a hearing date obtained, the documents (including your statement) have to be served personally, i.e handed to the Respondent face to face. This will be done by a process server instructed by us. To enable us to carry this out efficiently, we will ask you for as much information as possible about the Respondent, including a description, a photograph if possible and details about where and when they can be found. In most cases, the Respondent must be served at least two days before the hearing.
Note: In the most severe cases, this procedure can be shortened by an application being made for an emergency order before the papers are served on the Respondent. This is known as a ‘without notice’ application. The court will only make these orders in exceptional circumstances and your solicitor will advise you if it is appropriate in your case. Where this procedure is followed, the other person is not served with your application until after the order is made. There is nearly always a second hearing date, when the Respondent is able to attend court.
5. Do I need to attend court and what happens when I do?
Yes, you must attend court. If the Respondent does not come to court then, as long as she/he has been properly served with the papers, the case will go ahead without them. If the Respondent turns up and has legal representation then it may, if you agree, be possible to reach agreement outside court.
Sometimes, the Respondent might agree to the order you have requested or might agree to give an undertaking. This is a serious promise to the court, which if breached, carries a sentence of up to two years imprisonment. An undertaking would usually be in the same terms as the order you are asking for, for example, the Respondent might promise not to use or threaten violence against you, or to leave your home within a fixed period of time. The court will only accept an undertaking from the Respondent if the judge is satisfied that it will protect you as well as, or better than, a court order.
7. Contested hearing
If no agreement can be reached a full hearing will take place. You and the Respondent will both give evidence in court and be questioned on the details given in your statement. The judge will then decide whether to make any orders. In all cases, when deciding whether to make an Occupation Order, the court must consider all the circumstances of the case, including the housing needs and resources of the parties and any relevant children, the financial resources of the parties, the likely effect of an order or decision not to make an order on the health, safety or wellbeing of the parties and any relevant children and the conduct of the parties in relation to each other and otherwise. The court is also required to apply “a balance of harm test”, balancing the harm to the Respondent of making the order, against the risk of harm to you of refusing to do so.
The court may also, on or after the making of an Occupation Order, impose obligations on either party as to the repair and maintenance of the property and payment of rent, mortgage or other outgoings.
8. What happens after the hearing?
The order made by the court must be personally served on the other person. You will also be given a copy, which you should keep safely. A copy of the order will also be lodged with the police. If the other person did not attend court, the order is not usually effective until it has been served.
9. What is a power of arrest?
If the court believes that the other person has used or threatened violence against you, or a child who is involved, it will attach a power of arrest to an occupation order. This must happen unless the judge thinks that you can be properly protected without a power of arrest. If there is a power of arrest attached to the order and the other person breaks the order, the police can arrest the person and they must be taken to the court within 24 hours of their arrest (excluding Sundays, Christmas day and Good Friday).
10. What happens if the other person ignores the order?
There are two things you can do.
1) You should contact the police as soon as possible. If the Respondent has breached a non-molestation order, this is a criminal offence and can lead to a prison sentence of up to five years. If the Respondent has breached a Power of Arrest attached to an occupation order, they can be arrested immediately and must be taken to the court within 24 hours to appear before a judge. If the police arrest the Respondent, you must inform your solicitor of this. We can try to arrange for someone to go and speak to the court on your behalf.
2) If the Respondent cannot be arrested or you are unable to contact the police, your solicitor can apply to the court to have him/her committed to prison.
11. What if the other person breaches an undertaking?
Someone who breaches an undertaking can be committed to prison. However, breach of an undertaking is not a criminal offence, and a power of arrest cannot be attached to an undertaking, so you must make an application to the court for the Respondent’s committal. You should contact your solicitor immediately if the undertaking is breached.
We do appreciate that if you have been the subject of domestic abuse a lot of the legal procedures involved in obtaining an injunction can be overwhelming. It is our aim to simplify the procedure for you as much as possible and achieve the protection that you need as quickly as we can. If there is anything in this fact sheet which you do not understand, you should feel free to talk to your solicitor about it.