DOMESTIC VIOLENCE GETTING AN INJUNCTION

[Alison J Stevens]

Getting an injunction

You can listen to this part of the Survivor's Handbook (mp3)

You could try to gain some protection from your abuser by applying for a civil injunction or protection order. 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

A non-molestation order is aimed at preventing your partner or ex-partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and your children.

 

An occupation order regulates who can live in the family home, and can also restrict your abuser from entering the surrounding area. If you do not feel safe continuing to live with your partner, or if you have left home because of violence, but want to return and exclude your abuser, you may want to apply for an occupation order.

Under new legislation, a breach of a non-molestation order is now a criminal offence; however, you should still be able to take your abuser back to the civil court for breaking the order, if you prefer this.  If you already have an injunction, you may have a power of arrest attached, and you can also have powers of arrest attached to an occupation order.  These powers come into effect if your abuser breaks the order (see below, Powers of arrest.) 

 

While getting a court order may provide some protection, it isn't always helpful: sometimes it makes very little difference, and it can even (in some cases) be counter-productive.

 

Who is eligible to apply for an injunction?

 

In order for you to apply for one of these orders 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 are or have been married to each other.
• You are or have been in a civil partnership with each other;
• You are cohabitants or former cohabitants (including same sex couples)
• You live or have lived in the same household.
• You are relatives.
• You have formally agreed to marry each other (even if that agreement has now ended).
• You have a child together (this can include those who are parents of the same child, and those who have parental responsibility for the same child).
• Although not living together, you are in an “intimate relationship of significant duration”.
• You are both involved in the same family proceedings (e.g. divorce or child contact).

Recent legislation (the Domestic Violence Crime and Victims Act, 2004) will amend the Family Law Act so that cohabiting same sex couples will be able to apply for occupation orders, and they, as well as couples who do not live together or have children together, will also be able to apply for non-molestation orders.

 

If you are not eligible to apply for an order under the Family Law Act, or if you are being continually harassed, threatened, pestered or stalked after a relationship has ended, you can also get civil injunctions under the Protection from Harassment Act 1997. Recent legislation also allows a restraining order to be attached when criminal proceedings have been taken - even if the conviction has not been upheld – if the court believes you are likely to be at risk.  Restraining orders can provide the same protection as injunctions under the civil law but may be more effective as they carry stronger penalties.

 

Action under the criminal law, coupled with restraining orders, may help you avoid the cost of taking civil legal action if you do not also need to apply for an injunction to exclude your abuser from your home. (See also the section on Police and the criminal prosecution process.)

 

If you are applying for an occupation order you either have to have a legal right to occupy the home (as joint or sole tenant or owner of that home), or you have to be or have been married to, or cohabitating with, an opposite-sex partner who is the owner or tenant. The court will apply a 'balance of harm' test when deciding whether to make the order. When making an occupation order, the court may make other related orders imposing obligations on you or your abuser (for example, relating to repair and maintenance of the home, or to payment of rent or mortgage).

 

Injunctions are normally for a specified period of time (e.g. six months) but can be renewed; or they 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 (i.e. as owner or co-owner, or tenant/joint tenant, or because you are or have been married to the owner/tenant).

 

Getting legal advice

 

Although you can apply for an injunction yourself, you might find it helpful to have legal advice. It is best to get a solicitor who has a lot of experience with domestic violence cases, and who is likely to understand all the issues. Your local Women's Aid organisation may be able to refer you to a solicitor who has experience of domestic violence issues. The Law Society or the local Citizens Advice Bureau will also be able to give you a list of family solicitors in your area.

 

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. (Your partner's or husband's income is not taken into account if you are taking legal action against him.) See below Funding for legal action.

 

Going to court

 

Applications for injunctions under the Family Law Act are held at the Magistrates' Family Proceedings Court or the County Court, or in some cases the High Court. The application 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 will not normally be allowed to take in a friend or other supporter (though they can stay in the waiting room). The good thing about this is that no members of the public will be there (unlike at a criminal court) and this provides a degree of privacy.

 

If you are concerned that your abuser might hassle you while you are waiting, you should tell your solicitor who can ask the court officers to keep him away from you. They should also be able to provide separate waiting areas.

 

You can ask for your address to be kept secret and not read out in court, so that the abuser does not know where you are staying.

 

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' or ex parte application. The court will need to consider whether or not you are at risk of significant harm, whether you will be prevented or deterred from applying if you have to wait or whether your abuser is avoiding being served notice to appear before the court.

 

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.

 

If there are other family proceedings already in progress (for example, for a residence or contact order for a child) the court may wish to hear the whole case together - but they can still grant an emergency order while you are waiting for the full hearing.

 

What evidence will be needed?

 

You will need to make a sworn statement (sometimes called an affidavit) to the court about the physical and emotional abuse you have experienced. You should be as precise as possible about all the ways you have been physically and emotionally harmed, the dates and times (if you have them) and the effects on you and your children. It is important that you or your solicitor provides the court with as much evidence as possible of all aspects of harm caused by your partner or ex-partner's abusive behaviour. It will help if you have kept a record of past events, or if you have independent evidence, such as police reports or medical records.

 

The court has discretion when deciding to make an order, and has to look at all the circumstances, including the likely effect of any order on the health, safety and well-being of you and your partner or ex-partner, your conduct in relation to each other, your needs, and your financial and housing resources.

 

The court sometimes suggests that, instead of an injunction, the abuser should make an undertaking (a promise) to the court not to harass or threaten you. While this is supposed to have the same strength as a court order, and breach of an undertaking constitutes contempt of court, in practice, undertakings cannot be enforced effectively, as powers of arrest cannot be attached. The court should never accept an undertaking where violence has been used or threatened, and you do not have to agree to accept an undertaking if you do not want to.

 

If you are applying for an occupation order and do not have a legal entitlement to occupy the property, the court must apply a 'balance of harm' test (that is, a test to determine who will suffer the most harm if an order is not made).

 

Once an order has been made, you should have a copy, and your soliciter should arrange for a printed copy to be handed personally to your abuser. The injunction will not be effective if there is no proof that your abuser received it.

 

Power of arrest

 

If your abuser has used or threatened physical violence, and the court accepts this at a full hearing of the case, then it must attach a power of arrest to an injunction (unless it believes you will be adequately protected without this). This means that a copy of the order must be held on record at the police station (you or your solicitor should ensure that this happens), and the police can arrest immediately if the order is broken, even without a specific criminal offence having been committed. A power of arrest may be attached even if the hearing was held 'without notice' if the court believes you are likely to be at risk of harm otherwise.

 

Under new legislation, breach of a non-molestation order will automatically become a criminal offence. Occupation orders will be treated differently, however, and a separate 'power of arrest' will still be needed.

 

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 he has breached a non-molestation order made after 1st July 2007, or if there is a power of arrest attached, the police should arrest the abuser (see above), and are required to 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. Your abuser is in contempt of court for disobeying a court order. The court may then fine your abuser, impose a suspended sentence, or commit to prison (rare for a first offence). The court is also likely to add a power of arrest to the injunction in order to strengthen it in future.

 

Under the Domestic Violence Crime and Victims Act, 2004, breach of a non-molestation injunction will become a criminal offence. This means that once this provision comes into effect, the police should treat any breach of such an order just like any other criminal offence; so if they arrest your abuser, he will be taken to the Magistrates' Court, and not back to the County Court or Family Proceedings Court. This should strengthen the power of court orders. (See also the section on Police and the criminal prosecution process).

 

If, however, you are unhappy about the enforcement process being taken out of your hands, it should still be possible for you to take your abuser back to the County Court or Family Proceedings Court for contempt of court - in the same way as you have to do for the breach of an occupation order.

 

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, and run by the Legal Services Commission). The income of your partner or husband does not count if you are taking legal action against him.

If you are applying for legal aid to cover the costs of seeking protection from domestic abuse (e.g. a non-molestation order, occupation order or forced marriage protection order) then you will qualify for legal aid regardless of your income.

If you are on benefits or a low or no income, and with little or no savings, you will not pay anything towards your legal costs.

If your income after essential outgoings (such as utility bills, mortgage or rent payments, and allowances for children) is over a certain amount, you will be asked to pay a contribution towards the costs of your case.  This contribution would be paid monthly until the case ends and the certificate is discharged.  You will also be asked to make a contribution if you have savings over a certain amount.

For other issues (such as those relating to divorce, contact or residence) an eligibility test will apply, but you will still be eligible for legal aid if you are claiming benefits, or have a low (or no) income of your own.

The Community Legal Services website has information about applying for this funding, and there is a calculator enabling you to work out how much – if any – your monthly contribution is likely to be. The CLS website has a directory that enables you to find a solicitor in your area. All solicitors listed there hold the Community Legal Service 'quality mark'. You can call their national helpline on 0845 345 4 345 (Minicom 0845 609 6677) for advice about benefits, tax credits, housing, employment, education or debt problems.

 

In addition to income criteria, you will need to show that there are reasonable grounds to pursue the case (that is, the 'cost benefit criterion' set out in the Legal Services Commission Funding Code).

Applying for funds to pursue a case may take time, but in the case of an urgent application for a domestic violence injunction, a solicitor who is contracted with the Legal Services Commission can grant an emergency certificate of legal representation.

 

You can also get free advice from a law centre or from the Citizens Advice Bureau. It is also possible to make your own application for an injunction. Your local County Court office will be able to give you the forms and a leaflet, 'Part IV of the Family Law Act: How can it help me?', or you can download these from the Court Service website. There is an application fee but if you can't afford this, you can apply for it to be waived. Alternatively, you may be able to apply to the Magistrates' Family Proceedings Court instead, and if you do this, you won't have to pay a fee. Rights of Women produces the Domestic Violence DIY Injunction Handbook which may help you. This is also available in Bengali, Gujerati, Hindi and Urdu. 

Further information

Rights of Women
You can contact their free Legal Advice Line for women by women: 020 7251 6577 (telephone) or 020 7490 2562 (textphone). Open Tuesdays, Wednesdays and Thursday 2–4pm and 7–9pm. Also open Friday, 12–2pm.
They also run a free Sexual Violence Legal Advice Line for women by women: 020 7251 8887 (telephone) or 020 7490 2562 (textphone)
Open Mondays 11am-1pm and Tuesdays 10am-12pm.

Southall Black Sisters
Provides advice and information on domestic violence, racial harassment, welfare and immigration, primarily for Asian, African and African-Caribbean women. Casework primarily undertaken in London Borough of Ealing, but deals with enquiries on a national basis.
Tel: [phone] (Mon-Fri 10am–5pm closed Wed)
Fax: [phone]
e-mail: southallblacksisters@ btconnect.com

View the useful links on legal advice.

Contact the Freephone 24 hour National Domestic Violence Helpline on 0808 2000 247, (run in partnership between Women's Aid and Refuge) for information on legal options relating to domestic violence. They can put you in touch with your local Women's Aid organisation and other related services in your area. You can also search online for a local domestic violence service.

Local Women's Aid or other domestic violence support services can offer you support in getting an injunction or going to court, and refer you to local solicitors experienced in domestic violence issues.