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Preventing abuse - Injunctions
If you are in fear of or are suffering abuse you could try to gain some protection from your abuser by taking out an injunction or protection order against the abuser.
What is an Injunction?
An injunction is a court order that requires someone to do or not to do something. There are two main types of injunctions available under Part IV of the Family Law Act 1996:
- A non-molestation order
- An occupation order
The purpose of a non-molestation order is to stop your partner or ex-partner from using or threatening violence against you or your child or from intimidating, harassing or pestering you.
An occupation order is intended to regulate who can live in the family home. It may also restrict the abuser from entering the surrounding area. If you do not feel safe living with your partner, one or both orders may be appropriate.
However obtaining a Court order is a last resort and a decision to do so should only be taken after giving the matter careful thought and taking legal advice, as obtaining an injunction may provide some protection but may also inflame the situation.
Who can apply for an injunction?
In order for you to apply you must be an "associated person". This means you and your partner or ex-partner must be related or associated with each other in one of the following ways:
- You live or have lived in the same household.
- You are or have been in a civil partnership with each other;
- You are cohabitants or former cohabitants (including same sex couples)
- You have formally agreed to marry each other (even if that agreement has now ended)
- You are relatives.
- You have a child together
- You are or have been married to each other.
An injunction usually lasts for a specified period of time (e.g. six months) but it can be renewed or it may be made "until further order". There is no limit on the length of time that non-molestation orders can be extended. Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home (e.g as owner or co-owner, or tenant/joint tenant, or because you are or have been married to the owner/tenant).
Do I need a solicitor to apply for an injunction?
You can apply for an injunction yourself, but the process is reasonably technical and you should find it helpful to have legal advice as there are a lot of things to think about. It is best to get a solicitor experienced in domestic violence cases who is more likely to understand the issues
You may be eligible for public funding (Community Legal Services funding, or legal aid) to pay your legal costs if you are claiming welfare benefits or are on a low income and have little or no savings. If you wish to obtain public funding you will need to instruct a solicitor who will work with publically funded clients.
Funding for legal action
If you are on a low income or are receiving state benefits (such as Income Support or income-based Job Seeker's Allowance) and have little or no money in savings, you may be eligible for civil legal aid (now called public funding or Community Legal Services funding run by the Legal Services Commission). The income of your partner or husband does not count if you are taking legal action against him.
What happens when I go to court?
Due to the sensitive and confidential nature of these matters the application for an injunction will be in a closed court (in chambers) and no one who is not directly concerned with your case will be allowed in. This means that you will be able to take in your solicitor or other legal representative but that you will not normally be allowed to take in a friend or other supporter (though they can stay in the waiting room). This is designed to ensure a degree of privacy.
You can ask for your address to be kept secret to prevent the abuser finding out where you are living.
How long does it take to get an injunction?
If you are in immediate danger, an application can be made to the Court on the same day without your abuser being there. This is called a "without notice" (ex parte) application. The court will need to consider whether or not you are at risk of significant harm before proceeding in this way. Otherwise the process is likely to take a few days.
If the court grants a 'without notice" order, you will have to return to court for a full hearing once your abuser has been served with notice.
What evidence will be needed?
You will need to make a sworn statement (sometimes called an affidavit) to the Court about the abuse you have experienced be it physical or emotional or both. You should be as factual and precise as possible about all the ways you have been physically and emotionally harmed. This should set out all the dates and times (if you have them) and the effects on you and your children. It is important to give the court as much evidence as possible. It will help if you have kept a record of past events or if you have independent evidence such as police reports, neighbours' statements or medical records.
An injunction is only effective if there is proof that your abuser received a copy of it.
The Court sometimes suggests that, instead of an injunction, the abuser should give an "undertaking". This is a formal promise to the Court not to subject you to violence or threats and not to harass you. In theory an undertaking has the same effect as a Court order and breach of an undertaking constitutes contempt of court. However it may not be as straightforward to enforce as an injunction. You do not have to agree to accept an undertaking if you do not want to do so.
What happens if the abuser breaks the order?
If your abuser breaks the terms of the injunction, and you are at all fearful for your safety or that of others, you should call the police. If there is a power of arrest attached, the police should arrest the abuser bring him back before the court within 24 hours.
If there is no power of arrest, then you (with the help of your solicitor if you have one) may have to go back to court yourself and apply for an arrest warrant.
Talk to one of our solicitors
Maureen Walters
Tel: 0208 774 9571 email: maureen.walters@ormerods.co.uk
Christopher Goodwin
Tel: 0208 774 9561 email: christopher.goodwin@ormerods.co.uk
Emma Chapman
Tel: 020 8774 9512 email: emma.chapman@ormerods.co.uk
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