What is domestic violence?
It is important to understand that the term ‘domestic violence’ does not just refer to physical violence. It has been defined to include “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.”
‘Controlling behaviour’ has in turn been defined to mean “an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”
Lastly, ‘coercive behaviour’ has been defined to mean “an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.”
If you are a victim of domestic violence, then you can apply to a court for an injunction order. The order can take one or both of two forms: non-molestation orders and occupation orders.
Non-molestation orders
A non-molestation order is an order preventing the abuser from molesting or harassing the victim. ‘Molestation’ includes using or threatening violence against the victim, but may also include other types of behaviour, such as contacting the victim in any way when they do not wish to be contacted.
The court can make a non-molestation order to protect the victim and any relevant child (i.e., any child living with the victim) if it is satisfied that an order is required in all of the circumstances, including the need to secure the health, safety and well-being of the victim and any relevant child.
The non-molestation order will specify how long it is to last, normally for one year.
Sometimes it is necessary to obtain a non-molestation order urgently, where the victim needs immediate protection. In such circumstances the court can make a temporary order, without notifying the other party. These orders are known as ‘ex parte’ orders, and last until a full hearing of the application takes place, with both parties present.
Occupation orders
Occupation orders deal with the occupation of a house, usually the house in which the victim and abuser resided. The order can require the abuser to leave the house (and even keep a certain distance away from it), prevent them from returning there if they have already left, require them to allow the victim back in the house if they have left, or even control how the parties should occupy the house.
The law relating to occupation orders is quite complex and exactly how it operates, including the duration of the order, depends upon the relationship of the parties and whether they are entitled to occupy the property. Essentially, however, the court will consider all of the circumstances of the case, including the housing needs and resources of both parties, their financial resources, the effect of the order on the health, safety and well-being of the parties and any relevant child and the conduct of the parties.
Obviously, ordering a person to leave their home is not a trivial step for a court to take and therefore occupation orders are normally only made after the alleged abuser has had the opportunity to put their side of the case to the court.
Enforcing orders
A breach of a non-molestation order is a criminal offence, which means that the police will usually arrest the person in breach. The maximum penalty for breach of a non-molestation order is five years imprisonment. Note that sometimes a court is prepared to accept an undertaking (or promise) from the abuser not to molest the victim, rather than making a non-molestation order. Breaching an undertaking is not a criminal offence and will therefore be punished by the Family Court as a contempt of court (the court can impose a fine or a prison sentence of up to two years).
Breach of an occupation order is also not a criminal offence. However, occupation orders usually have a ‘power of arrest’ attached to them, which means that the police may arrest anyone breaching the order. The police must then take them before the Family Court, which can then punish them for contempt of court.
Richard Howlett is a solicitor at Selachii - 02077925649 - This email address is being protected from spambots. You need JavaScript enabled to view it.
