What is domestic violence?
The title can be misleading. The intention of famiy law in England and Wales is to protect people in domestic situations from non-violent as well as violent conduct. Sometimes the term domestic abuse is used which more clearly shows that verbal threats and bullying behaviour that fall short of violence are also capable of protection under the law.
What can the law do?
A court can, if application is made to it, grant an injunction to a victim or person suffering from abuse or violence within a family relationship by one or both of the following:
1. A non-molestation order
2. An occupation order
In neither situation is violence a prerequisite. It is for the court to balance the interests of the person asking for help against those of the alleged perpetrator.
Molestation has quite a broad meaning. The intention is for orders to protect someone being harrassed, pestered, threatened and ultimately harmed. A court has to be satisfied that some form of molestation has occurred to warrant protection. In addition the Judge must be satisfied on the balance of probabilities that an order is necessary to control the behaviour of the other person. An adult can request protection for themselves and/or their children.
These are more complicated because the court is being asked to deal with the rights of people to occupy or be excluded from their home. The purpose of the law is to balance the right of people to occupy their own homes with the requirement to keep safe those people that may be being harmed behind closed doors. When a Judge is considering exclusion of a person from their home, it has to have regard to:
1. The housing needs and housing resources available to each person and any relevant child.
2. The financial resources of each person.
3. The likely effect of any order, or of any decision not to exercise its powers on the health, safety or wellbeing of the people concerned and of any relevant child.
4. The conduct of the people in relation to each other and generally.
In additon the court is required to balance the harm that might be caused by not making an order agaist the harm that would be caused by making one.
Who can be protected?
The Family Law Act 1996 which is the statute within which the court operates its powers uses a term “associated persons” to determine if they can make application to the court for an injunction. The definition encompasses most family members and was extended by the Domestic Violence, Crime and Victims Act 2004 to include former spouses and cohabitants even after the relationship has ended. Those people that fall outside the definition of associated persons can have recourse to similar provisions to non-molestation under the Protection from Harrassment Act 1997.
What is the court process?
- An application for an order is prepared and sent to the court for issue along with the relevant court fee.
- There may be one or two court hearings depending on how urgently the injunction needs to be obtained. Urgent cases permit the first hearing to be attended by the person claiming protection only.
- A process server is usually instructed to personally deliver to the respondent any order made.
Breach of these orders can now be enforced through the criminal system. The Police have dedicated domestic violence officers and support workers who are able to assist victims of abusive behaviour and relationships. There are other agencies in addition who can give practical guidance and support.
How much will a court application cost?
This process can be expensive and you should discuss these with us at the outset.
Domestic violence Protection Notices/Orders
DVPN’s and DVPO’s aim to provide immediate protection following an incident of domestic violence and are issued by the Police. They run for no less than 14 days and no more than 28 days so are a short term interim remedy to give time for other applications to be made.