The court can make orders to protect a party from violence or threats of violence. This remedy extends to those couples who are or have been married, civil partners, cohabitants or former cohabitants or parties that are related.
Types of Orders
It is deliberate conduct by one party (i.e. the Respondent) to another (i.e. the Applicant) which requires court intervention. It can include harassment, violence or threats of violence.
An order will be made by the court prohibiting the Respondent from doing, by setting out each type of harassment that should now be prohibited. A non-molestation order is made for a specific period, usually for 6 months.
In cases of immediate danger, the court can make an order without the Respondent being made aware of the intended application. However in cases where there is no immediate danger, then the application is made on notice to the Respondent.
What happens next?
If an order has been made, this must be personally served on the Respondent and a copy will be lodged with the Police. This type of order is enforceable by the Police. If the Respondent breaches the non-molestation order, it will become a criminal offence, punishable by up to five years imprisonment.
This deals with who should be allowed to continue to occupy the home with the exclusion of the other party. It will depend on the relationship between the parties and the rights that either of them has to occupy the property in order to pursue this type of remedy through the court.
There is a presumption that an occupation order should be made if it appears to the Court, that the Applicant or any relevant child is likely to suffer significant harm, which is attributable to the conduct of the Respondent.
This has to be carefully balanced against the harm that is likely to be suffered by the Respondent or relevant child if the order is made.
The Court will not only exclude the Respondent from the property, but it can also order him/her to make payment to the household and deal with the contents of the property.
A power of arrest will usually be attached to an occupation order, and an order is made for a specified period, again, usually 6 months.
What happens next?
This order must be personally served on the Respondent and a copy will be lodged with the Police. If the Respondent breaches this order, the Police can arrest the Respondent but it will not become a criminal offence, but can still be punishable by imprisonment.
The Court may accept an Undertaking from a party instead of making any of the orders referred to above but the court will refuse to accept an Undertaking if it feels that it will not offer a party sufficient protection, for example, in cases of serious violence.
A breach of an Undertaking is enforceable on by the Court. It is not therefore a criminal offence and the Police will not arrest the Respondent of the breach.
Other Types of Remedies
Protection from Harassment Act 1977
A victim to a course of conduct harassment can bring a claim for a civil injunction under the Protection from Harassment Act. Any person who has been the victim of harassment can apply to the Court.
There does not need to be any form of relationship between the victim and the perpetrator. An injunction order will be granted to prevent a course of conduct by the Respondent and with this type of injunction there is no restriction on the length of period in which the order can be in force.
There is a remedy for breach of this type of order through the civil court and can be punishable by a term of imprisonment.
Injunction to restrain a Tort
This type of remedv is now infrequently used, but is still available for those who have suffered or are likely to suffer violence.
Please feel free to contact your local Beeston Shenton office to discuss your own position and concerns.
64 King Street, Newcastle-under-Lyme, Staffordshire, ST5 1JB
Telephone: 01782 662424 . Fax: 01782 662484
Lea House, 5 Middlewich Road, Sandbach, Cheshire, CW11 1XR
Telephone: 01270 750057 . Fax: 01270 759842
The information on this page is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more details or information about the matters referred to on these web page please seek independent formal legal advice. This information was correct at the time of going to press in August 2012.
Beeston Shenton Solicitors are regulated by the Solicitors Regulation Authority. SRA No. 420578