Domestic violence - overviewDomestic violence

In cases where there have been incidents of domestic violence it may be appropriate to seek the court's protection with an application for a non-molestation order and/or an occupation order under the Family Law Act 1996 (FLA 1996).

Under FLA 1996 the court also has the power to make a non-molestation order even where no application has been made, where, in other family proceedings to which the respondent is a party, the court considers the order should be made for the benefit of any other party to the proceedings or any relevant child.

An application under FLA 1996 may be commenced in a county court, a family proceedings court or the High Court. The magistrates' powers are more limited.

Application is in the form prescribed by Practice Direction 5A, which supplements the Family Procedure Rules 2010 (FPR 2010)), supported by a witness statement verified by a statement of truth which must state the reason for the urgency if done without notice and be accompanied by a draft order and copies for service.

Rules on service are strict. The application and order must be personally served on the respondent. Personal service is required for an on notice application not less than two business days prior to the hearing; time may be abridged. Service may be required on third parties, eg mortgagees. If a power of arrest is attached to an occupation order, or if a non-molestation order is made, a prescribed form must be completed and delivered to the appropriate police station with a copy of the order.

The court has power to make both an occupation order and a non-molestation order without notice to the respondent where it considers it is just and convenient to do so.

Non-molestation orders

A non-molestation order confers protection on family members, including children or people in a domestic relationship, against the use of violence or other forms of molestation by a person with whom they are associated. There are eight classes of applicants who are associated persons, including married or divorced couples, civil partners and engaged or formerly engaged couples.

There is no statutory definition of molestation, it has been held to include pestering.

In deciding whether to make an order, the court will have regard to all the circumstances, including the need to secure the health, safety and well being of the applicant and any relevant child.

Following amendments made by the Domestic Violence, Crimes and Victims Act 2004 (DVCVA 2004) breaching any term of a non-molestation order is a criminal offence. The respondent must be aware of the existence of the order.

Occupation orders

An occupation order is an order primarily determining a right to occupy a property. The court may declare, confer or regulate occupation rights in the family home between family members or those involved in a domestic relationship. There are five types of occupation orders, including requiring a party to leave a home. There are different rules regarding entitlement and eligibility.

The powers of the court are less extensive in relation to certain classes of applicants where neither party is entitled.

The court must consider the statutory criteria and if it appears that the applicant or child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, then an order must be made unless, the respondent or any relevant child is likely to suffer significant harm if the order is made and that harm is as great or greater than the harm likely to be suffered by the applicant.

If the court decides that neither the applicant nor child will suffer significant harm as a result of the respondent's conduct the court must exercise its discretion taking into account all the circumstances including:

An occupation order is a draconian remedy.

Additional provisions

The court has ancillary powers to impose obligations on either party when making certain orders, eg payment of rent or mortgage.

The court may accept undertakings in certain circumstances but restrictions on this were introduced by DVCVA 2004. Since July 2007 a power of arrest may only be attached to an occupation order.

New powers were introduced on 30 September 2009 to protect victims of domestic violence following an extension of powers that allowed the courts to grant restraining orders following conviction for any offence. The new powers allow courts to issue a restraining order where someone has been acquitted, if it is considered necessary to protect a named person from harassment in the future. Breaking the terms of a restraining order is a criminal offence punishable by up to five years in prison. Courts had previously only been able to issue them in limited circumstances.

Protection may also be afforded by the provisions of the Protection from Harassment Act 1997, which makes it an offence to pursue a course of conduct that amounts to harassment and creates a civil tort allowing for a claim for damages and ancillary injunctions. Criminal restraining orders may also be made. It is now possible to make a claim to the Criminal Injuries Compensation Scheme.

There are new provisions in the Forced Marriage (Civil Protection) Act 2007 enabling applications to prevent or assist a person from being forced into a marriage or from any attempt to be forced into a marriage.