Fact Sheets
Domestic Abuse
If you have been the victim of violence, threats of violence, intimidation, harassment or pestering it is possible to seek an Order from the Court preventing this behaviour. This would be a non-molestation Order. The Court would have to be satisfied on the balance or probabilities that the behaviour alleged has occurred and the the Court would consider whether an Order is required to secure your health, safety and wellbeing or of any relevant child.
If you are still living in the same home as the perpetrator of this abuse it is possible to apply to the court for an occupation Order. This could be an Order requiring one party to leave the home or part of it or allowing a party who has been evicted to enter and remain in the home and in addition Orders can be made as to the discharge of rent, mortgage instalments and other outgoings.
The Courts consider differing matters in relation to an application for an occupation Order, dependent upon the relationship between the parties, ie whether the person applying for the Order is actually entitled to live at the property because he or she has a legal entitlement in their own right to do so or because they are a spouse and there is no entitlement to remain in their own right at the property.
In an emergency situation where a party needs immediate protection it is possible to apply to the Court, attend Court without notifying the other party and obtain an Order. The Court will consider whether there is a risk of significant harm if the Order is not made, whether the person applying for the Order would be deterred or prevented from doing so if an Order were not made immediately and whether there is reason to believe that the other party is aware of the proceedings and would deliberately evade receiving notification of the proceedings and thereby the Applicant would be seriously prejudiced by the delay.
Where the Court is satisfied that there has been the threat of violence then the Court must attach a Power of Arrest unless they consider the party would be adequately protected without one. A Power of Arrest would enable a Constable to arrest the other party if he/she had reasonable cause to suspect that the other party was in breach of the Order. If the other party is arrested they are brought before a court within 24 hours to be dealt with for their contempt of Court. Even if a Power of Arrest is not attached, if the other party should breach the Order again they can be brought back to Court and punished for their contempt.
It is possible to obtain Legal Aid if you are financially eligible to seek an injunction Order (non-molestation or occupation Order). If the application were an emergency then you would attend with a solicitor at Court on the same day or the following day to obtain an Order there and then. You would need to complete an application form and witness statement giving details of the alleged behaviour.
If the application were not an emergency then we would send the application and the witness statement to the court and wait for a Hearing date. We would then personally serve the other party with the application, giving them 2 clear days notice of the Hearing. We would then attend Court and ask the Judge to make the relevant Order.
There are two main pieces of legislation which provide protection for victims of violence or (mental) abuse. In a family situation, eg between husband and wife or co-habitees etc, you would apply under the Family Law Act 1996. However, there may be circumstances where the person harassing you is a stranger or relative stranger or is not linked to you by way of a family connection. If this is the case it is possible to obtain an injunction Order under the Protection from Harassment Act 1997.
What amounts to harassment is defined by reference to the "reasonable person test". Therefore, if a reasonable person believes that the conduct complained of amounts to harassment then the course of conduct would be classed as harassment. It will include alarming a person or causing a person distress and does not just include acts but can include speech only. However, in order to apply under this Act the conduct complained of must involve incidents which occur on at least two occasions. It is possible not only to seek an injunction to prevent further harassment but also to seek damages, i.e. a sum of money, for the anxiety caused by the harassment and for any financial loss resulting from the harassment.
The Protection from Harassment Act 1997 actually makes harassment a criminal offence. A person found guilty of this offence would be liable to imprisonment for a term of up to 6 months or a fine (somewhere up to £2,000) or both. The harassment can take a more sinister turn in the sense that it can actually put people in fear of violence and a further offence has been created in this regard. This is a more serious offence than the offence of harassment and anyone found guilty of this criminal offence would be liable to imprisonment for a term of up to 5 years or a fine or both.
If you are seeking protection form a person linked to you in a family context it is possible to apply under either the Family Law Act or the Protection from Harassment Act. In comparing the two pieces of legislation it is important to note that under the Protection of Harassment Act you can claim damages. In addition, the other party could find themselves guilty of a criminal offence. However, a Power of Arrest cannot be attached to the civil injunction. Instead it is suggested that an application would have to be made to the Court for a Warrant of Arrest to be issued against the other party. They would then be brought back to Court and dealt with for their contempt.
If you have been a victim of domestic violence you may obtain compensation under the Criminal Injuries Compensation Scheme.
East Berkshire Women's Aid are conducting a free 12 week programme open to any woman who wants to learn more about the reality of domestic violence and abuse. If you would like to take part in the course, please contact East Berkshire Women's Aid on 01753 693472.
In an emergency please contact East Berkshire Women's Aid on 0800 085 2654. This is available 24 hours a day.
Colemans Solicitors LLP August 2007