Protection from Domestic Abuse – Non-Molestation Orders and Occupation Orders

Where there is domestic abuse or harassment a person can apply for a court order known as an Injunction against:

  • Someone they are or have been married to;
  • A cohabitant or former cohabitant;
  • Those living in or who have lived in the same household (other than as the other person’s employee, tenant, lodger or boarder).
  • The parent of their child
  • Someone they are or have been engaged to.
  • Someone they have been involved in an intimate relationship with for some time.
  • A relative

Two types of Injunction.

There are two types of injunction:

  • A Non-Molestation Order which prohibits someone from using violence against the other person, threatening them with violence, pestering, harassing or molesting them or coming within a specified radius of their home.
  • An Occupation Order which excludes one party from occupying a home or from coming within a stated radius of it

Applying for an Injunction

An application is made to the court supported by a statement setting out the background. In urgent cases the application may be heard without the other party receiving notice. If this is the case the court will usually make a short term order and list the matter for a further hearing to allow the other party to attend. The matter can be resolved by a court order or by the other party giving an undertaking, which is a solemn promise to the Court. The Applicant needs to attend Court on all hearings. Any injunction order is only valid once it has been personally served upon the other party. There is no automatic entitlement to either of the above orders, and it is open to the other party to defend the application.

What the Court will Consider

When the Court considers making an Occupation Order it must have regard to all the circumstances of the case, including

  • housing needs and resources of the parties and any relevant children
  • the likely effect of an Occupation Order or decision not to make an Occupation Order on the health, safety or well-being of the parties and any relevant children and the conduct of the parties in relation to each other.

The test applied by the Court does differ dependant upon the relationship between the parties and the legal rights that either of them has to occupy the home.The Court may also, on or after making an Occupation Order, impose obligations on either party regarding the repair and maintenance of the property and payment of rent, mortgage or other outgoings.The duration of Non-Molestation Orders and Occupation Orders does vary, but is typically either six or twelve months. However, it can be extended if the other party continues to cause problems.

Enforcement of a Non-Molestation Order

If the opponent in your case (the Respondent) has done any action which is in contravention of the Non-Molestation Order which has been made in your favour, this constitutes a criminal offence and you should contact the police immediately.The police should arrest the Respondent and question them in relation to the alleged breach and thereafter place them before the magistrate’s court to determine whether they have breached the order and, if so, to punish them. Where there is a breach of a Non-Molestation Order the Magistrates Court may sentence the Respondent by means of custody or a fine. The Court may also defer sentencing to ensure future compliance with the terms of the Non-Molestation Order. That is to say the court may say to the Respondent that they will not impose any sentence at this stage provided he or she complies with the Non-Molestation Order but if there are any further breaches the Respondent will then be sentenced for both the old breach and the new breach.

If the Respondent denies having breached the Non-Molestation Order then the Magistrate will fix a trial date when you will need to go and give evidence on behalf of the Crown Prosecution Service and the Respondent will also give evidence. The police may also obtain additional evidence to prove the breach and therefore, if you are aware of any person who can give evidence in support of your version of events, you should inform the police. If, having heard evidence, the Magistrates are satisfied beyond a reasonable doubt that the Non-Molestation Order has been breached by the Respondent, he/she can be sentenced as above.

If you report the breach to the police but they do not take any action you should let your solicitor know. In these circumstances it may be possible, with your solicitor’s help, to make an application to the county court to enforce the Non-Molestation Order using the committal procedure set out below.

Breach of an Occupation Order

The way that an Occupation Order is enforced depends on whether there is a ‘power of arrest’ attached to the Order. If there is a power of arrest attached to the Order you should contact the police immediately. The police should then act upon the power of arrest and arrest the Respondent. When the Respondent is arrested he or she will be taken to the County Court by the police within 24 hours. If the Occupation Order does not have a power of arrest attached to it, in the event of a breach, it is the responsibility of the Applicant to take steps to bring the Respondent before the court to be punished for the breach. This is a Committal application.

Breach of an Undertaking

If your case has been resolved by way of the Respondent giving an undertaking, and the Respondent fails to comply with that undertaking, a Committal Application can be made to the Court for the Respondent to be punished for the breach.

Committal application

This is an application where the County Court is asked to punish your opponent for breaching an Order. If the Court finds that the Order has been breached, then the Court can impose a punishment such as imprisonment or a fine on the Respondent. The Court could also defer sentence so that the Respondent is told that he or she will not be sentenced at this stage but if he or she fails to comply with the Order again he or she will be sentenced not only in relation to the new breach, but the breach which has already been admitted.

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