Anyone can find themselves trapped in an abusive relationship. Often unsure about what to do, how to get out, to protect themselves and their children from domestic abuse. Sometimes people don’t recognise when they are in fact in a controlling or abusive relationship until very many incidents leave them frightened lost isolated and unsure of what legal help may be available.
Most people have heard the phrase “injunction” indeed many reports of abuse in a domestic setting made to the police end in the advice to go and get an injunction, but what does it mean? Who can apply for it? How will it work?
What is an injunction?
There are two types of injunctive orders, which are as follows:-
- Non-molestation order – this provides a person with protection against being subjected to violence, the threat of violence, harassing and/or pestering behaviour. It can prohibit a person from attending at a specific address or within a certain radius of that property, it can prohibit a person from contacting you directly or indirectly, or using or threatening violence or instructing a third party to do so.
- Occupation order – this is an order a person can apply for to request that an order be made to remove a person from a property or prohibit them from returning. An occupation order can also regulate how the property is occupied.
When considering whether either of the above orders should be made, the court will consider a balance of harm test. This means that the court will consider whether there is more risk of harm should the order not be made as opposed to any risk of harm in the event the order were to be made.
- To be able to apply, the other party must be what the law calls an ‘associated person’. To be associated, you must be:
Married or civil partners or were at one time
- Cohabiting or were cohabiting
- Living in the same household but not as an employee, tenant, lodger or boarder
- Engaged or was so at one time
- Are parents of a child together
- Had a significant intimate relationship
- Are parties to the same family proceedings
How do you get an injunction?
To obtain either of the above orders, a formal application will need to be made to the court together with a detailed statement setting out the circumstances and the reasons the orders are being requested.
An urgent application can be made without notice being given to the other party, if deemed appropriate. We can discuss as to whether this may be appropriate or not.
If you are aged 17 or under, you will need permission to apply for an injunction from the High Court.
If you are aged 16 or 17 years old, you will need to appoint what is known as a ‘litigation friend’. This person will represent your interests in court and is often either a parent, family member or close friend.
After you have applied for an injunction
Once you have applied for an injunction and the court has made an order, that order and your application must be served on the other party as soon as possible. Particularly so if an order has been made in the other parties’ absence. The orders will not be enforceable against the other party if they are not aware of them.
We would have the other party personally served with the court paperwork and any orders made. A copy of the order should also be served on the local police station so that they are aware of any non-molestations orders. This is because should a non-molestation order be broken then this would be a criminal offence and the police will have the power to arrest the person breaking the order.
If an order has been made by the court without the other party being given notice of the application, then the court will list another hearing called a return hearing. This gives the other party the opportunity to put their position before the court and to advise whether they agree to the orders remaining in force or not.
If the orders are being contested (the other party does not agree to them remaining in place) then the court will order both parties to file statements and set the matter down for a final hearing. At a final hearing, both parties may be required to give evidence and the court will determine whether the orders should remain in force and for how long.
What if the person the order is made against does something to breach the order made?
If a non-molestation order or occupation order has been made by the court and the person the orders have been made against does something to breach those orders, then you should contact the police.
Breach of a non-molestation order is a criminal offence and the police can pursue a criminal conviction in relation to this breach if appropriate.
How can I fund an application to the court?
You may be entitled to legal aid if you meet the financial criteria in respect of your income and capital. We can assess you in relation to this. If you do not qualify for legal aid then we can discuss funding options with you in terms of you receiving advice and assistance from us or us providing you with full representation.
There is no court fee payable when making these types of applications.
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What if im too scared to see the other person at court?
When making an application to the court we can request what is known as ‘special measures’. This is asking the court to put in place things such as providing a separate entrance, a separate waiting room and/or a screen in the court room so you do not have to see the other person and to avoid you coming into contact with them as much as possible.
How long does it take to obtain a non-molestation/occupation order?
This depends on whether the orders are required urgently. This will need to be assessed on a case by case basis to decide whether the circumstances warrant an urgent application being made to the court without any notice being given to the other party. In certain situations where an urgent order is required, it may be possible to apply to the court and obtain an order the same day. This is subject to the Judge considering the order should be made without any notice being given to the other party in order to protect the person applying for it.
What should I do if an order is made and the other person breaches it?
You could call the police immediately without delay if the other person breaches the order.