Domestic Violence & Abuse
If you or a child are in danger, dial 999 to call the police immediately.
In this blog post I am looking at how Helen Archer in Radio 4’s The Archers became a victim of her husband’s abuse.
Unfortunately couples do not just fall out of love and then separate. Some people make their partner’s life unpleasant; some couples make each other’s lives unpleasant; some people are using physical violence. While those asking for help from the police and the courts are largely women who seek protection from men, there is also violence against men by women and in same-sex relationships. Perhaps men often feel too embarrassed to seek help, perhaps they feel that they are physically strong enough to ensure that they are not at real danger when attacked and just stomach regular punches, bruises and pain. It is difficult to find these things out as they happen mostly behind closed doors in people’s homes.
Constant harassment and passive-aggressive behaviour are also forms of abuse. Sometimes the physical side is directed against objects, for example by destroying or throwing away something dear or important to the other. The law against domestic abuse is trying to protect against these type of aggression as well.
The applications can be made when there is abuse or harassment short of violence which nevertheless means that that the applicant’s health and well-being is affected. If there has been violence, it is often useful to have photographs of bruises etc. or a record from the GP or Accident & Emergency Department of any injuries.
This page sets out free information on the following:
Please remember that any order the court makes is in the end a piece of paper only. The respondent may obey by it and can be punished and ultimately imprisoned for a short time if they do not. The order may also mean the police may come faster. However, the order does not actually stop the respondent from harassing or being violent. Often the police can help without the need for an order and will do so effectively. This depends to a large extent on the way the local police force deals with the matter.
If you or a child are in danger or fear violence, dial 999 to call the police immediately. If there is no immediate danger, you should still call your local police station or the domestic abuse unit of your local police to discuss your circumstances with them. Some forces are able to make a note against your address, so that if you call, they will prioritise the call and the police will come faster. Dial the non-urgent national police contact number 101.
An occupation order can be an order regulating the occupation of a home, e.g. who sleeps in which room, who is allowed to go into which part of the house etc. It can also ban one person from entering a home all together or coming into its vicinity. Such an order is regarded as drastic, especially if the person being banned from the home has a right to live there because they are an owner or tenant of the property.
In essence the court will look at all the circumstances of the case and make an order that is necessary. In particular the court will consider the following factors:
- each person’s housing needs and resources,
- each persons financial resources,
- the effect of any order or not making the order on the health, safety or well-being of the parties or any relevant child,
- the conduct of the parties.
In any case the court needs to balance the harm the applicant and any relevant child is likely to suffer if the order is not made against the harm the respondent and any relevant child is likely to suffer if the order is made.
These are called “non-molestation orders”. They can be made between two persons who are or where in a relationship, married, civil partners or cohabitants or are relatives or parents of the same child. The definition is wide to include nearly all types of family relationships. The order can be made by a court (if it thinks it is necessary) even without an application within other family proceedings. If someone applies for an occupation order, the court must consider whether to make a non-molestation order as well.
When considering whether to make a non-molestation order, the court needs to take into account all the circumstances including “the need to secure the health, safety and well-being” of the person in whose favour the order would be or a child.
Once the respondent is aware of the order, if they then breach it, that is a criminal offence and can be punished with a fine or imprisonment.
An undertaking is a solemn promise to do something or not to do something made to the court. In cases where one party applies for a non-molestation order, the respondent sometimes offers to give an undertaking as a promise not to do certain things without having to agree that they have in the past been harassing the applicant. The court can accept this undertaking unless the respondent has used or threatened violence and the court thinks it has to make an order to protect the applicant. A breach of an undertaking can be punished as contempt of court with a fine or imprisonment, but the respondent cannot be arrested immediately for such a breach.
The application is made on a form, which is fairly lengthy, supported by a sworn statement (affidavit or affirmation) setting out the facts and the reasons for making the application.
Time is usually very tight in cases of harassment or domestic violence. Therefore in almost all cases, depending on the local court’s arrangements, the applicant will make an application first to the duty judge on the day the application is issued. This is a short hearing without notice to the respondent. In almost all cases this is necessary to get a hearing date fast (usually within a week or two) and sometimes this is necessary because there is a fear that as soon as the respondent hears about the application, they may flip and this may cause them to harass the applicant even more or to become violent. The judge may then already make a non-molestation order to protect the applicant from harassment. The court rarely makes an occupation order at this stage. This is because nobody has a right to harass someone else as such, but may have a right to occupy the home, which an order would restrict or excluded.
If an order has been made without notice (or with notice and the respondent was not at court) the order must be served on the respondent, given to them, personally, usually through people who specialise in this work, called process servers. Your solicitor will organise this.
There will always be a court hearing with notice to the respondent so that they can put their case to the court. The court can then extend the orders made without notice, make other orders, or dismiss the application, depending on the circumstances. Sometimes there is not enough time to hear the evidence and if there is no agreement the matter will need to be listed again for a longer hearing.
For advice on your specific circumstances please contact a solicitor
25 May 2016 by Andrea Woelke