16 Days of Activism 2020 – Day 11
Civil/criminal orders to help survivors
What is a non-molestation order?
Non-molestation orders are a means of civil protection granted through the county courts for victims of domestic abuse, which can be applied for by any persons over the age of 16. If the victim is under the age of 16, permission needs to be sought from the high court. A non-molestation order is an injunction that aims to prevent an associated person (such as a current/ex-partner or immediate family member) from harming a person, or their children. The term harm does not only include physical violence, but also psychological abuse, harassment, intimidation and stalking. If a non-molestation order is breached, it is an arrestable offense, which could result in a sentence of up to five years.
Non-molestation orders come into effect when they are served upon the respondent, and the order itself would detail how long it is in place for. When making the application you would need to consider the relationship between the applicant and the respondent, and how long they have been in a relationship for, as the courts will only grant applications to those that have been in a relationship for a ‘considerable amount of time’. It is important to note that there is no guidance on what this means, and therefore each Judge would make a decision on a case-by-case basis. You would need to consider what terms you would like on the non-molestation order if it is granted, such as; location, contact, third party involvement, and the power of arrest.
Associated persons can be defined as; those that have been in an intimate relationship for a significant duration of time, which would be judged on a case-by-case basis. An associated person may also be a relative.
The Family Law Act (1996) outlines an associated person as persons that;
A) are or have been married/ in a civil partnership with each other.
B) are cohabitants or formal cohabitants.
C) live or have lived in the same household, otherwise than being the others tenant, lodger, boarder or employee
D) they are relatives
E) they have agreed to marry each other, even if this agreement has been terminated,
F) they have been in an intimate personal relationship with each other which was for a significant duration.
G) they are in relation to children that falls within Subsection 4 of the family law act (i.e. a parent of the child, or has parental responsibility of the child – including where a child has one natural parent, and the other party has adopted the child).
H) they are parties to the same family proceedings.
Those whose perpetrators are not an associated person, as defined above, would therefore not qualify for orders under the Family Law Act (1996) which include but are not exhaustive of; non-molestation orders, prohibitive steps orders, occupation orders, specific issues orders.
What is a Prohibitive Steps Order?
Prohibited Steps Orders look to prevent a parent from doing certain things or activities with their child(ren). For example, if a victim/survivor had concerns that the alleged perpetrator may remove the child from the local area, it would be worth discussing applying for a prohibitive steps order as a granted order can place restrictions on the parental responsibility. PSO’s can include preventing things such as; prevent a parent from removing the child from their school or nursery, from removing the child out of their home or local area, removing the child from the UK and can prevent a parent from changing the child’s surname. You would need to consider whether the respondent has PR over the child, as any person with parental responsibility is able to apply for a PSO. This also includes guardians and those that have been granted a residence order.
The courts will not use a prohibitive steps order to prevent a person with Parental Responsibility from having contact, instead a Contact Order or Residence Order would need to be considered.
What is an occupation order?
An Occupation Order aims to regulate who occupies the family home. Commonly, occupation orders are used to exclude members from the household, however they can also be used to; exclude from a defined area where the property is located, enforce the right to remain in the property, require permission to enter and remain in the property, restrict access to the property and regulate the occupation of the property.
An occupation order would be required to remove a member from the family home that has legal rights to reside there. To apply for an Occupation Order, three requirements must be met by the applicant; they must have a legal right to occupy the property, or have a legal or contractual right to occupy the property, which can include matrimonial home rights by the virtue of a marriage. The property has been the home of both parties for a period of time, or was intended to be a home. The parties must be associated, whereby ‘associated persons’ is a person such as a spouse, cohabitee, relative, civil partner, those that have had an intimate personal relationship for a duration of time or people that have agreed to marry (as outlined by s62-s63 of the Family Law Act 1996).
When applying for an Occupation Order, the courts will decide which is informed by a balance of harm test. The balance of harm considers whom will be at greater risk of harm should the order not be made in their favour. Therefore, just because an applicant may have been a victim of domestic abuse, they may not be deemed as vulnerable when considering the balance of harm (i.e. if the respondent has an illness which is incapacitating, then the order may instead be granted in the respondents’ favour). The courts will consider the housing and financial resources of both parties and the children involved, the health, safety and wellbeing of the children, and the conduct of both parties.
What is a protection from Harassment Order?
There are numerous circumstances whereby a person may not be eligible for Civil Protection Orders granted under the Family Law Act. Victims/Survivors may not be able to obtain a non-molestation order under the family law act, if the respondent is not an associated person, for example, an immediate family member, (ex) partner, of cohabitee, in these circumstances, where there has not been a relationship for a substantial period of time, the victim may be able to apply for a Protection from Harassment Order (PFHO). A person may not be able to apply for a prohibitive steps order if they, or the respondent do not have PR of the child the application is regarding. A person would not be eligible to apply for an occupation order if they have no legal or contractual right to occupy the property, or are not married or in a civil partnership.
If a victim/survivor is not classified as an associated person to their alleged perpetrator, an option that may be appropriate to consider in these circumstances would be a Protection from Harassment Order (PFHO) under the Protection from Harassment Act (1997 Section 3). A victim is able to apply to the courts under Section 3 of PHA to; seek an injunction against the person carrying out the course of conduct amounting to harassment, be awarded damages for anxiety and loss of finances due to the harassment, or to make a claim for compensation.
To make an application a course of conduct must be identified, for example, on at least two occasions. To make the application, an N16A would need to be completed alongside a witness statement. There are £340 court costs for the application, however you are able to submit an EX160 to waive the fee. You are also able to get legal aid for a PFHO, using the means and merits test.
The applications for a PHA order can be made at the County Courts. A protection from harassment order can be granted by the civil courts by the victim of the course of conduct. Both high courts and county courts are able to issue these injunctions, with a purpose to restrain the respondent from continuing to pursue the course of conduct.
Breaches of the order is a criminal offense, and on a conviction of indictment, they may receive up to five years in prison, and/or a fine. If a person is guilty on a summary conviction, then they may be sentenced to up to 6 months in prison, a fine, or both. Applications for a PHA injunction would need to be supported by evidence that the actions have been carried out or threatened. If the order is granted, and subsequently breached, the applicant can apply to the courts for an arrest warrant for the committal of the perpetrator, for being in contempt of court.
What is a transfer of tenancy?
If a property is rented either privately or via the council, then you are able to apply for a transfer of tenancy. If you wish to move out of the family home, then you are able to apply for a transfer of tenancy via the courts, however you would need to consider the impact that this may have on any applications being made for social housing, and therefore it is always best to get further advice on your specific housing issues (organisations such as Citizens Advice Bureaux, Shelter, South Essex Domestic Abuse Hub). It is important to consider that if a Transfer of Tenancy is not sought, the person that has left the property would still be liable for rent and other obligations. Additionally, sole applications for a transfer of tenancy are not covered by legal aid, however, if an application for a transfer of tenancy is made alongside a non-molestation order and occupation order, the legal aid will extend to cover the transfer of tenancy.
What is a specific issue order (SIO)?
An SIO is an order that can be sought from the family courts, regarding a specific issue that has or may arise with regards to any aspect of Parental Responsibility for a child. This can include matters such as; medical treatments, discussions regarding their education, changing their name and many more.
If you would like to discuss civil orders, we would always recommend getting legal advice from a qualified professional. You should seek to speak with a solicitor covering Family Law for further advice.
Alternatively, you can contact your local Citizens Advice Bureau or Support through court https://www.supportthroughcourt.org/.
#femicide @womensaid #16DaysofActivism #orangetheworld #EVAWG2020