Court orders to remove the perpetrator and prevent abuse

A survivor of domestic abuse has options for taking civil action to stay in their home. The remedies are designed to protect them from further violence and to establish rights to stay in the home.

A survivor of domestic abuse might be able to apply for:

• a non molestation order under the Family Law Act 1996

• an occupation order under the Family Law Act 1996

• an injunction under the Protection from Harassment Act 1997

Non-molestation orders are orders made by the courts to prohibit molestation of an associated person or a relevant child.

These orders can be obtained to prohibit behaviour including:

• persistent threats of violence

• harassment

• violence

• abuse

There is no specific definition of molestation. It can cover many forms of unwanted behaviour, including harassing and pestering as well as physical violence. There is no need to prove actual violence.

Definition of associated person

An associated person may apply for a non-molestation order.

Two people are associated where they:[1]

• are or have been married to each other

• are or have been civil partners

• are or have been living together as cohabitants

• are parties to the same family proceedings

• live or have lived in the same household

• have agreed to marry or to enter a civil partnership, whether or not that agreement has been terminated[2]

• are parents of a child or people who have had parental responsibility for that child

• are relatives[3]

• have or have had an intimate personal relationship[4]

People who live together as employer and employee or landlord and lodger are not associated.

An application for a non-molestation order based on an association by civil partnership cannot be made more than three years after the termination of a civil partnership agreement made under the Civil Partnership Act 2004.[5]

Where a child has been adopted, two people are associated with each other if they are in a relationship of:

• natural parent or grandparent, and adopted child

• natural parent or grandparent, and adoptive parent

Definition of relevant child

A 'relevant child' is defined as a child who lives with or could be expected to live with either party involved in the proceedings, a child who is the subject of adoption or Children Act proceedings, or any other child whose interests the court considers relevant.[6]

Child applicants

A parent or someone with parental responsibility normally applies for a non-molestation order on behalf of a child. A 16 or 17 year old child can apply in their own right.

A child under 16 cannot apply for an order in their own right without the permission of the court.[7] The court must be satisfied that the child understands the proposed application. The application should be made to the High Court.

When a non-molestation order can be made

The court can make a non-molestation order on application from an associated person, with or without other family proceedings. It can also be made without the need for a specific application, if the court considers it of benefit to any of the parties involved in family proceedings[8]

Circumstances in which a non-molestation order can be made

The court must consider all the circumstances of the case, including the need to secure the health, safety, and well-being of the people concerned and any relevant child.[9]

Duration of orders

Non-molestation orders can be made either for a specific length of time or until another order is made. Where an order is made during other family proceedings, it ceases to have effect if the proceedings are withdrawn or dismissed.[10]

Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the family home. They are only a short-term solution and do not affect what happens to the property in the final settlement. Their main use in domestic abuse cases is to exclude someone from the home or from a specified area around the home.

Occupation orders can be granted under a number of different sections of the Family Law Act.

The main differences between the orders are:

• who can apply for them

• the criteria the court must use

• the length of time they last

Non-molestation orders and occupation orders can be effective remedies for domestic violence, but they do have some limitations, in that they:

• are not granted automatically; the courts must have regard to all the circumstances of the case, even where there has been violence[11]

• cannot provide a guarantee of protection

• are time-limited and might not be renewable

• are expensive, especially if the applicant is not eligible for Legal Aid

• do not provide long-term solutions to disputes over property

Applications can be dealt with by any court that has jurisdiction in family cases.[12] There is no distinction between the orders made in County Court or magistrates' courts. Two days' notice must normally be given to the other person, but in some cases, a 'without notice' order can be made.

The applicant must submit form FL401 to the court along with a witness statement. The court will then conduct a full hearing. The applicant must attend court for the hearing of the application but is not required to give evidence in court unless the application is contested.

'Without notice' orders

The court can make a non-molestation or occupation order without notice of the proceedings having been given to the other person if it considers it 'just and convenient'.[13]

This could happen where the incident is extremely serious, or where the perpetrator might commit further acts of violence if they had notice of the application.

The court must also have regard to all the circumstances of the case, including:[14]

• any risk of significant harm to the applicant or child if an order is not made immediately

• whether the applicant might be prevented or deterred from making an application if the order is not made immediately

• whether there is reason to believe the other person is deliberately evading service of notice and the applicant could be seriously prejudiced by the delay

If a without notice order is made, the person against whom it is made must be notified that the hearing took place and be given the opportunity to make representations at a full hearing, which should be held as soon as is just and convenient.[15]

A without notice order does not become effective until the person against whom it is made has been served with a copy.

Enforcement of a non-molestation order

Breach of a non-molestation order is a criminal offence. In the Crown Court it it is punishable by imprisonment or a fine, or both. In the magistrates' court, the offence is punishable by imprisonment for a term not exceeding 12 months, or a fine, or both.[16]

The court cannot attach a power of arrest to the non-molestation order itself.[17] The final decision as to whether to take criminal proceedings for the breach of the non-molestation order lies with the Crown Prosecution Service.

Enforcement of an occupation order

Where violence has been threatened against the applicant or child, the court must attach a power of arrest to the occupation order, unless it is satisfied that the applicant or child will be adequately protected without it. If the order is without notice, attaching a power of arrest is at the court's discretion.

The court can attach a power of arrest to one or more provisions of the order if violence has been used or threatened against the applicant or child, and there is a risk of significant harm from the perpetrator if the power of arrest is not attached immediately.

If a power of arrest is attached, a police officer may arrest the offender without a warrant if the order is breached. The offender must be brought before the court within 24 hours.[18] If there is no power of arrest and an injunction is breached, the victim can apply for the perpetrator to be committed to prison for contempt of court. If the court finds the perpetrator in contempt of court, they can be punished by fine or imprisonment. Courts do not normally order committal to prison on a first breach unless it is very serious. Orders are more likely to be suspended conditionally.

Where the court has not attached a power of arrest, or has attached that power only to certain provisions of the order, the applicant can apply in the County Court for a warrant for arrest for breach of the order.[19]

The application for a warrant for arrest must be sworn on oath, and a warrant must only be issued where there are reasonable grounds for believing that the person has not complied with the order.[20]

Non-molestation and occupation orders under the Family Law Act 1996 can be granted to protect a child. The Family Law Act also amended the Children Act 1989[21] so that the courts have power to include a requirement for someone to be excluded from the home in an interim care order or an emergency protection order. This could enable an abuser to be ordered to leave the home, rather than a child having to be removed to a place of safety.

People who are not specified in the categories of associated people in the Family Law Act are not eligible to apply for occupation orders or non-molestation orders under that Act. Excluded people include people who have never lived together, or people being stalked. People who are not eligible to apply for non-molestation or occupation orders include:

• relatives or sharers who are licencees of the tenant or owner

• relatives who have never lived together

People who are not eligible may be able to apply for an award of damages or an injunction .

Powers to award damages and injunctions exist under the Protection from Harassment Act 1997 and under the common law. Injunctions under the common law cannot include powers of arrest.

The Protection from Harassment Act 1997 contains powers to make injunctions to combat harassment in the civil and criminal courts.

A person experiencing domestic abuse should get advice from a solicitor about applying for an injunction. It might be more effective to apply for an order under the Family Law Act 1996, as long as the people involved are personally connected.

Meaning of harassment

The term 'harassment' is not defined in the Act, although it does set out what sort of behaviour is prohibited. A person must not behave in a way that amounts to harassment of another person and that they know, or ought to know, amounts to harassment of the person.

The person whose behaviour is in question ought to know that it amounts to harassment if a reasonable person would think that the behaviour amounted to harassment of the other person.[22]

In addition, the behaviour complained of must occur on at least two occasions.[23]

In domestic abuse situations, behaviour constituting harassment under the Act could include abuse in public, persistent threatening phone calls, or verbal threats.

Applying for an injunction to prevent harassment

A claim for an injunction can be made where harassment has actually taken place (actual harassment) or where harassment is expected to take place.[24]

This means that the courts have the power to grant an injunction even where no harassment has yet occurred, although strong evidence of threatened harassment is needed. Applications can be made in the County Court or the High Court.

Enforcement of injunctions

The victim can apply for a warrant of arrest if the injunction is breached.[25] This is in addition to their right to apply for committal to prison for contempt of court. They can apply to the court that granted the injunction for an arrest warrant to be issued. An application can be made giving notice to the perpetrator, or without giving notice. The court will issue a warrant where it has reasonable grounds for believing that the perpetrator of the harassment has done something that is prohibited by the injunction.[26] A person who breaches a civil injunction without reasonable excuse has committed a criminal offence.[27] The maximum punishment for this offence is five years imprisonment and/or an unlimited fine.[28] Where a person is convicted of this offence, breach of the injunction cannot also be punished as a contempt of court.[29]

Problems with injunctions

The Protection from Harassment Act provides remedies that may be effective for victims of domestic abuse. There are some problems that mean civil injunctions are not straightforward.

The court might not grant an injunction on hearing the application, and if they do, there is no guarantee of protection. They are usually time limited to a number of weeks or months, so they are not usually a long term solution.

If the applicant is not entitled to legal aid for the case, the process can be expensive. Any issues like joint ownership of property or a joint tenancy would have to be sorted out separately.

Damages

A person who has experienced harassment can claim general and special damages for anxiety and any financial loss caused by the harassment from the perpetrator.[30]

Because the Family Law Act 1996 and Protection from Harassment Act 1997 remedies are stronger, common law tort actions are not normally used in domestic abuse situations. They could be appropriate where Family Law Act remedies are not available and the circumstances are not covered by the harassment offences under the Protection from Harassment Act.

What is a tort?

A tort is a civil wrong. It describes the infringement of, or harm suffered by violation of, a legal right of the injured party. An action could be both a crime and a tort, for example a person who is the victim of an assault could ask the police to prosecute the perpetrator under criminal law and bring a separate civil action to obtain an injunction to exclude the perpetrator from premises.

The different types of tort action that may be relevant in domestic violence situations are:

• torts of trespass affecting a person

• torts affecting property

• the tort of nuisance

This area of the law is complex and will need a solicitor to establish the exact nature of the wrong that has been committed and the appropriate cause of action.

From 8 April 2024, possession proceedings are specified as 'relevant proceedings' during which the County Court can make a domestic abuse protection order (DAPO).[31]

A DAPO can be made if the Court has evidence of domestic abuse and both the victim and the perpetrator are parties to the proceedings.[32]

A domestic abuse protection order can impose any conditions the Court considers necessary to protect the victim, for example prohibit the perpetrator from:[33]

• abusing, threatening or harassing the victim

• entering the home where the victim resides

A breach of DAPO is a criminal offence.[34]

A domestic violence protection order can be made without the victim's consent.[35]

Victims of domestic abuse may be able to receive legal aid if they have evidence of the abuse and they cannot afford to pay legal costs. Domestic abuse is defined in the Domestic Abuse Act 2021 as abusive behaviour by one person towards another person who is personally connected to them. It can consist of:

• physical or sexual violence

• violent or threatening behaviour

• controlling or coercive behaviour

• psychological, emotional or other abuse

• economic abuse

Children under the age of 18 are victims of domestic abuse if they see, hear or experience the effects of the abuse, and are related to the perpetrator or the person experiencing the abuse.[36]

What counts as evidence of domestic abuse

An applicant usually needs to show that they or their children are at risk of harm from a partner, a family member, or another connected person.

The applicant does not need to have the evidence before contacting a legal aid adviser or the Civil Legal Advice (CLA) helpline. However, they will need to see the evidence before deciding if the applicant is eligible for legal aid. Accepted evidence can come from a variety of sources, including:

• courts and tribunals

• the police

• multi-agency risk assessment conference (MARAC)

• social services

• health professionals, for example a doctor, nurse, midwife, psychologist or health visitor

• a refuge manager

• domestic violence support service

• a bank, for example credit card accounts, loan documents and statements

• employers

• education or training providers

• benefits office

Applicants can use sample letters to request the evidence. The person or organisation who provides the evidence may charge a fee .

Eligibility waiver in domestic abuse and forced marriage cases

Depending on all the circumstances of a case, the Legal Aid Agency (LAA) can waive the financial eligibility criteria at its discretion in cases relating to victims of domestic abuse and forced marriage.