If a person is suspected of having committed a criminal offence, until investigations are concluded or until they are tried and/or sentenced, they may be subject to bail conditions not to return to a property or communicate with a specific person. These conditions have a similar effect to an injunction because if a person breaches any bail conditions, they can be arrested and brought before the criminal courts.
Civil remedies are also available to victims of domestic violence. The term “Domestic Violence” does not only include actual or threatened violence, but other forms of behaviour, generally known as molestation. Orders from the court can be obtained forbidding one party from molesting the other (called “Non-Molestation Orders”). In addition, Orders can be obtained ordering one party to leave the home (called “Occupation Orders”).
The grant of both a Non-Molestation Order and an Occupation Order depends upon the person applying (the “Applicant”) and the person facing the application (the “Respondent”) being “Associated Persons”. Associated Persons are:-
- Those who are or have been married to one another, that is, spouses or ex-spouses.
- Cohabitants or former cohabitants (people living together as husband and wife or those who used to live together in such a relationship).
- Those who live or have lived in the same household (other than by reason of one of them being the other’s employee, lodger or boarder). This covers those who have lived together in the same household other than by commercial agreement. It would therefore cover same sex relationships.
- Certain relatives which include a father, mother, son, daughter, brother, sister, aunt or uncle.
- Persons who have or have had an intimate relationship with each other which is or was of significant duration but have never married or cohabited.
If you are not associated people, an application for an injunction may still be possible under harassment laws. We can advise you further in respect of this if necessary.
A Non-Molestation Order prevents the Respondent from molesting the Applicant or a relevant child. Such an order can prohibit particular actions or molestation in general. Molestation includes a wide variety of behaviour, such as violence or threats of violence at one end of the scale, to actions which pester the Applicant (for example, nuisance phone calls, loitering and shouting outside the Applicant’s home). The order only prevents molestation. It does not order a person to leave the home and nor does it deal with the rights of the parties to occupy the home.
When the Court is considering an application for a Non-Molestation Order, certain factors must be taken into account. The Court must have regard to all the circumstances of the case, including the need to secure the health, safety and wellbeing of the Applicant or a relevant child.
A Non-Molestation Order may be made for a specific period or until further order. This means that they may be made for a set period, for example 6 months, or may be open ended.
These orders deal with occupation of the family home. An Applicant who wishes to exclude a Respondent from the home requires an Occupation Order. It is common for an Applicant to apply for both Non-Molestation and Occupation Orders provided that he or she meets the qualifying criteria. Occupation Orders are generally more difficult to obtain than Non-Molestation Orders.
The categories of people entitled to apply for Occupation Orders are more restricted than the categories entitled to apply for Non-Molestation Orders. In addition, there are strict criteria to be considered by the Court when considering whether such orders ought to be made.
For an Applicant to have a right to apply for an Occupation Order, he or she must first satisfy two conditions:-
- The Applicant and the Respondent must be associated persons.
- The property must be a dwelling house and must be or have been intended to be the home of the Applicant and the Respondent.
Occupation Orders are usually made for a specified period (e.g. for six months). They can also be made to continue indefinitely.
Ex-Parte (Without Notice) Orders
The Court has the power to make Ex-Parte Occupation and Non-Molestation Orders in appropriate cases. This means that the court will grant an order without the Respondent being notified of the application.
If the Court makes an Ex-Parte Order, it must arrange a full hearing as soon as possible so that the Respondent can make representations on notice if desired.
Power of Arrest Provisions
Until the 1 July 2007 the Court had the power to attach a Power of Arrest to an Occupation or Non-molestation Order. This meant the Police could arrest without warrant a person who was reasonably suspected of breaching the Orders.
However, the Family Law Act has now been amended to make a breach of a Non-molestation Order a criminal offence and as such it is no longer necessary for the Courts to attach a Power of Arrest to Non-molestation Orders. Upon a breach, action is taken by the Crown Prosecution Service through the criminal Courts/procedure.
A Power of Arrest can however still be attached to an Occupation Order.
At Jackson Quinn, members of our family team have a proven ability to advise and represent clients on all aspects of domestic violence. We recognise that this is often a traumatic issue but aim to be sensitive to our clients’ needs, doing our uppermost to ensure their personal safety is protected.
To arrange an appointment in the strictest of confidence, please call: