According to the Crime Survey for England and Wales, an estimated 2.1 million people ages 16 years and over experienced domestic abuse in the year ending March 2023. Of those people, 1.4million were woman and 751,000 were men. Of course, this is just an estimated number and the actual figures could be much higher. The number of domestic abuse related crimes recorded by the police (excluding in Devon and Cornwall) was just 889,918 and there were only 51,288 related prosecutions in the same year.  

What is Domestic Abuse?

The Domestic Abuse Act 2021 defines domestic abuse as behaviour by one person towards another they are personally connected to that consists of the following:

1. Physical or sexual abuse;
2. Violent or threatening behaviour;
3. Controlling or coercive behaviour;
4. Economic abuse (defined as behaviour that has a substantial adverse effect on the victims ability to acquire, use or maintain money or other property or obtain goods or services); and
5. Psychological, emotional or other abuse.

The Act specifically states it does not matter whether the behaviour was a single incident or a course of conduct.

What does “personally connected” mean?

A person is “personally connected” to another if any of the following applies:

1. They are, or have been, married to each other;
2. They are, or have been, civil partners of each other;
3. They have agreed to marry one another (whether or not the agreement has been terminated);
4. They have entered into a civil partnership agreement (whether or not the agreement has been terminated);
5. They are, or have been, in an intimate personal relationship with each other;
6. They each have, or there has been a time when they each have had, a parental relationship in relation to the same child;
7. They are relatives.

How can Family Law solicitors help?

If you are experiencing domestic abuse and feel that you or your children are in immediate danger, your first port of call should be to call the police.

Whether or not the police are involved, you should obtain legal advice about what your options are going forward. There are two types of orders (‘injunctions’) you can apply for under the Family Law Act 1996 – a non-molestation order and an occupation order. In order to apply for either, you must be an “associated person” of the person you apply for an order to be made against. The definition of an associated person is similar to being “personally connected” but adds the following:

1. You are cohabitants or former cohabitants;
2. You live or have lived in the same household, otherwise than merely by reason or one of you being the other’s employee, tenant, lodger or boarder;
3. You have or have had an intimate personal relationship with each other which is or was of a significant duration;
4. In relation to any child, you are the parent of the child or you have or have had parental responsibility for that child; or
5. You are parties to the same family proceedings.

As long as one of the above criteria is met, you can apply for either of the above orders.

What is a non-molestation order?

The purpose of a non-molestation order is to prevent the perpetrator (who will be the ‘respondent’) from causing you or your children harm. A typical order might state that the respondent must not use or threaten violent against you and/or your children or encourage anyone else to do so. It can also order the respondent not to contact you and/your children or enter a property in which you live or your place of work.

If a non-molestation order has been made, it carries with it an automatic power of arrest so that if the order is breached the respondent could risk a prison sentence (maximum of 5 years). The order typically lasts for between 6 to 12 months unless the court decides otherwise (which can include extending the term upon further application).

What is an occupation order?

An occupation order sets our who can or cannot live in a property or certain parts of it. This means that, if the order is made, the respondent can be excluded from returning to the home in which you lived together or can be excluded from entering certain parts of the home. It is a relatively extreme order to make (because of the way it restricts an individual’s rights, normally in respect of the family home) and the court must consider the harm to you and/or your children and the respondent if an order is or is not made. It will also consider each person’s housing needs, financial resources, the effect on everyone’s health, safety and wellbeing and the conduct of each person.

Occupation orders do not carry with them an automatic power of arrest. However, if it is breached you can apply for the issue of a warrant for the arrest of the respondent.

How do I apply for a non-molestation order or occupation order?

First, Form FL401 will need to be completed with some basic information (like your details, what order you are applying for and on what basis and what your relationship with the respondent is). You will also need to prepare a witness statement to provide the court with the reasons for why you are making the application. This will include any specific incidents or the respondent’s general behaviour which has led to you seeking the protection of the order(s) you are applying for.

The application form asks if you want the order(s) to be made without giving notice to the respondent. This means you would like the court to make a decision about your application before the respondent is told you have made it. In that situation, the court will list a hearing for you to attend to explain why the respondent should not be told first (for example, if you fear they may react in a violent way towards you and/or your children upon hearing about what you are doing).

If the court makes the order on a without notice basis the next step will be to serve the order on the respondent. You can ask the court bailiff to do this by completing a Form D89.Alternatively, you can arrange for the respondent to be served yourself by using a process server. Either way, they will hand deliver the papers (your application and witness statement and the order(s) made) to the respondent. However, you must not serve the respondent with the papers personally. It is important to note at this point that the respondent will see a copy of your witness statement and will have the opportunity to respond (see below).

If the court decides that the order should not be made without notice to the respondent, it will list a hearing and provide notice to the respondent to attend (which will involve sending the above documents to them). The respondent will have the opportunity at that hearing to tell the court whether or not the order should be made and why. If the judge agrees that an order should be made then the application will conclude there and then.

If the order was made on a without notice basis or if the respondent was given notice but does not agree to the order being made, a further hearing will be listed (called a ‘return hearing’). The respondent will then be given the opportunity to prepare their own witness statement in response to yours. The court will then consider all the evidence before it at the next hearing to decide if the order should remain in place if it was already made without notice or if it should now be made.

The team at Burgess Mee can help if you need any further advice about how to obtain protection from the Family Law courts in relation to domestic abuse. Please contact mail@burgessmee.com.

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