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Injunctions

Obtaining injunctions is a way you can protect yourself from your abuser with the full force of the legal system behind you.

The term is used to describe any court order forbidding specified behaviour, such as threatening you, or limiting their actions, like visiting your home.

Breaching injunctions can be an arrestable offence (dependent upon the type of order) and courts may issue more than one type of order if considered appropriate.

There are 3 types of order that you can apply for in the civil courts:

Non molestation order
Occupation order
Prohibited Steps order

Non Molestation Orders

The Court will require evidence of molestation (domestic abuse) and must be satisfied that you need the protection of the Court

A non-molestation order can be applied for on an emergency basis without notice to the abuser, if there has been a threat of physical violence in the past week.

In deciding whether to grant an order on an emergency basis, the Court will consider all the circumstances in regards to 3 specific factors: whether there is any risk of significant harm if the order is not made immediately; whether it is likely you will be deterred or prevented from making or continuing the application if the order is not made immediately or whether the respondent (abuser) is deliberately avoiding being served with notice of the apply and that you would be seriously prejudiced by the delay.

If the order is granted without notice (ex parte), the respondent will not be aware of it until the order is served on him/her. There will then be a further (return) hearing, which your abuser is given notice of, in the order and can attend.

The most common application we assist with is for a non-molestation order so we have further details on a separate page.

The other two orders are occupation orders and prohibited steps orders.

Occupation Orders

An occupation order is how the Court regulates the occupation of the family home to protect those who live there. It is the most powerful order the Court has, as it could exclude an abuser from living in the family home or visiting there. In some cases, this could mean that an abuser must leave even if they are the legal owner of the family home. They may be banned from coming within a certain distance of the property.

Occupation orders are tailored to individual circumstances. Therefore if the abuser is not excluded from the family home, there could be conditions such as the respondent having to stay in set parts of the home at certain times, allowing you back into the home if they have locked you out, and ordering them to continue to pay towards the mortgage, rent, bills or repairs.

Under the Family Law Act 1996, an occupation order can only apply to the family home, in which you and your abuser either live or used to live in together.

You and your abuser must be “associated persons”, essentially married, or previously married, living together or previously living together, including in-laws, and you have been abused by them.

The Family Law Act has 5 sections under which an occupation order can be applied for. These differ according to your rights in the property and your “association” with your abuser.

Among factors the court will take into account are your housing needs, those of any children and the respondent’s; the financial resources of you and the respondent; your behaviour to each other; and the likely effect any order, or not making an order, will have on all parties, including any children.

Usually, an occupation order will only be granted if the respondent has somewhere else to live, though this stipulation is not always applied. A power of arrest can be attached in certain circumstances.

Prohibited Steps Orders

This order can prohibit someone with parental responsibility (under the Children’s Act 1989) for your child(ren) from taking them away from your care and control.

This order is particularly appropriate when the person threatening to take away your child(ren) is ordinarily allowed to look after them.

You must have parental responsibility for your child/children to apply for a prohibited steps order.

You can apply for one on an emergency basis (without notice) if, within the last 7 days, the Respondent has taken your child (even if they eventually returned the child to you), attempted to take your child or threatened to take your child.

The Court will grant a prohibited steps order if it considers that order to be in the best interests of your child. It may consider a child arrangement order to be more appropriate.
If a prohibited steps order is granted on an emergency basis, then the Court will require a further hearing when the Respondent will be required to attend.

Restraining Orders

This is the criminal court equivalent of a non-molestation order. It is only imposed at the end of the criminal proceedings but can be imposed even if a defendant has been found not guilty of an offence if the Court believes the order is necessary to protect another from harassment.

The order can be for a specified period or until further notice.

Breach of a Restraining order is a criminal offence and carries the same penalties as breach of a non-molestation order.

Length/Extension of an order

A non-molestation order is normally issued for a specified period of time, such as six or twelve months. The Court does have the power to make an order for a longer period or “until further order” however this will depend on a number of factors including the specific details of the abuse you have suffered, how long you have been abused for, whether there have been previous orders and whether they were breached by your abuser.

An application to extend a non-molestation order can be made but this must be done whilst the order is still in force. In practice, such an application should be done towards the end of the order.

An occupation order is issued for a set period of time. In practice, they tend to be for fairly short periods to allow you and your abuser to sort out new housing arrangements.

Occupation orders can only be extended beyond 12 months if you have the legal right to stay in the home or are married or were married to your abuser.

Application process

To seek injunctions, you must make an application to the family court: the required forms are available from any court or for download from the Ministry of Justice’s website. There is no court fee for an injunction related to domestic violence.

The NCDV can help you with the process, which will include preparing a witness statement whether it is through a solicitor if you qualify for legal aid or you represent yourself. We will also complete the Court application form for you. You should provide any supporting documentation from the police or your doctor, detail what you want the order to do and be prepared to attend at least two court hearings.

In the case of emergency injunctions, the court will need to be convinced there are good reasons to make one so you will need to explain in your witness statement what those grounds are.

Serving an injunction

A process server (which charges a fee) or the court bailiff has the duty of handing the injunction to the abuser. The order must be served on the abuser in order for it to be effective. In other words, your abuser needs to know there is an order against them before they can be held responsible for breaching any part of it. You are only protected once they are aware of the order. A copy should also be sent to your local police station.

It is also sensible to make sure you have a copy of an order on your mobile phone.

We also advise a copy of any prohibited steps order is provided to your children’s school to ensure they are not removed without your permission.

Enforcement

If the respondent breaches an occupation order, he/she can be arrested by the police if a power of arrest was attached. You should report any breach to the police.

When no power of arrest was attached to a non-molestation order, you need to apply – probably with a solicitor’s help – to the court to have your abuser arrested for contempt of court. Punishments available are imprisoning the abuser up to a maximum of two years, imposing a suspended sentence or fining them, as well as adding a power of arrest to the injunction.

No power of arrest is attached to prohibited steps orders. A breach is dealt with in the county court as contempt of court.

Advantage

As survivors have told the NCDV, the mere existence of an injunction can have a dramatic effect on an abuser’s behaviour. They will realise others are involved and there will be serious consequences if the abuse continues.

By Fiona Bawden, Times Online (8th May 2007)

“Steve Connor, a student at City Law School, is a man on a mission. Six years ago he was a fairly directionless 27-year-old. Today, as well as taking the Bar Vocational Course, he is chairman of the National Centre for Domestic Violence, a ground-breaking organisation that he dragged into existence after a friend could not get legal help to protect her from an abusive partner.

Connor’s route to the Bar has been circuitous. In 2001 he returned from a year in Australia (he says that he would not dignify describing it as a gap year), and took a job as a process server in South London. The job (“I just saw it advertised in the paper”) was not quite as dull as it sounds. On one occasion he was threatened with a machete, on another, he was nearly stabbed by a man he had arranged to meet on Clapham Common to serve with a non-molestation order: “He’d seemed really friendly on the phone…”

The turning point in his life came when a friend, who was being abused by her partner, turned to him for support. Connor went with her to the police. She did not want to press criminal charges so the police suggested that she visit a solicitor to take out a civil injunction. “We must have seen 12 solicitors in a morning. We just went from one to the next to the next to the next. Everyone was very eager to help until we sat down to fill in the forms for the legal aid means test,” he says. The woman, who had a small child, did not qualify for public funding. But, Connor says, her financial situation as it appeared on paper did not bear any relation to her financial situation in reality. “She had a part-time job and she and her partner owned their home. Yet she didn’t have any money. Her boyfriend was very controlling and controlled all the money; he kept the chequebooks and didn’t let her have access to the bank account.”

The injustice of the situation got under Connor’s skin. “I just couldn’t believe that there was no help available to people who did not qualify for public funds but could not afford to pay.

I just kept feeling that this must be able to be sorted if only someone would address it.”That “someone” turned out to be him.

In 2002, thanks entirely to Connor’s doggedness, the London Centre for Domestic Violence was formed. It started out with him and a friend, but is now a national organisation, covering 27 counties, and has helped approximately 10,000 victims last year to take out injunctions against their partners.

NCDV now has nine full-time staff, 12 permanent volunteers and has trained over 5000 law and other students as McKenzie Friends to accompany unrepresented victims into court. We have also trained over 8000 police officers in civil remedies available regarding domestic violence. The National Centre for Domestic Violence (NCDV) has branches in London, Guildford and Manchester and is on track to have branches in 16 areas within the next two years.

NCDV specialises exclusively in domestic violence work and could be characterised as a cross between McDonald’s and Claims Direct. The high degree of specialisation means that its processes are streamlined: clients can be seen quickly and the work is done speedily and cheaply. “Sometimes, we will have one of our trained McKenzie Friends at a court doing 10 applications in one day,” Connor says.

Clients are not charged for the service. NCDV staff take an initial statement: clients who qualify for legal aid are referred to a local firm; those that don’t get free help from the centre itself. It runs on a shoestring, heavily reliant on volunteers and capping staff salaries at £18,000 a year.

Steve expects to qualify as a barrister this summer and hopes that having a formal legal qualification will give the centre added clout. “We are already acknowledged as experts and consulted at a high level, so I thought it would be helpful if I could back that up by being able to say I’m a barrister,” he says. He is just about to complete a one-year full-time BVC course at the City Law School (formerly the Inns of Court Law School) and, all being well, should be called to the Bar in July. Although Connor sees his long-term future as a barrister, he says that he has no immediate plans to practise. “I want to get NCDV running on a fully national level. Then I may take a step back and have a career at the Bar.”

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By Fiona Bawden, Times Online (8th May 2007)