Due to the lockdown restrictions brought on by Covid-19, domestic abuse helplines have seen an influx in calls from victims who are experiencing emotional, physical, psychological, sexual or financial abuse. There are various options available to you through the emergency services, helplines and by obtaining legal protection through the family courts. Do not suffer in silence.
Call the police
If you are experiencing immediate threats or abuse, your first port of call should be the police. Due to the lockdown restrictions, you may not be able to speak to an operator without your abuser hearing you. You should therefore do the following:
- Call 999
- Listen to the response from the operator
- Cough or tap your handset
- Press 55 – this will let the operator know you cannot talk and it is an emergency and you will be put through to the police
Leave your house to stay with a family member or trusted friend
Under the government’s guidelines you are allowed to leave your home if you are experiencing domestic abuse. You should do this if you are in immediate danger or suffering harm at home.
You can also leave your home to stay with a friend for a few days respite away from your partner or another member of your household. You can use this time to consider your options and whether you should make an application to the court for protection.
Options available through the family courts
There are a number of options available to you under the protection of the Family Law Act 1996. To apply to the court you must be ‘associated’ with the respondent. This means you are married, cohabiting, engaged, living in the same household (i.e. a lodger or tenant), or a relative (mother/father/nephew/stepparent etc.) of the respondent. For a full list of ‘associated persons’, please click here.
Non-molestation orders – section 42 FLA
You can apply to the court for an order to prohibit the respondent (your husband/wife/fiancée etc) from using or threatening force and from pestering you, which includes, for example, harassing text messages which make you feel threatened. The order can prevent a respondent from coming within a certain distance from you (and your children) or from various locations, for example your house or children’s school.
An order normally lasts one year. However it can be indefinite. You need to prove to the court that you require a genuine need for protection, considering the safety, wellbeing and health of you and any relevant children.
Occupation orders – section 33 and 35-38 FLA
An occupation order gives you the right to occupy a property. The respondent will be ordered to leave and not return for the duration of the order, which will last between 6 months to a year, depending on the terms in which you occupy the home. You can apply to extend the order when you are approaching the end of the term.
You will need to prove to the court that you:
- Are ‘associated with’ the respondent (see above); and
- Live (or lived) at the property with the respondent; and
- One of the following applies:
- You have an existing right to occupy the home (i.e. where you own the property with the respondent or you are renting it together); or
- You are a spouse or civil partner of the respondent and the respondent has a right to occupy the home (the respondent owns/rents the house); or
- You are a former spouse or civil partner and the respondent has an existing right to occupy the home; or
- You are a former spouse or civil partner and the respondent does not have a right to occupy the home (e.g. it is the respondent’s brother’s flat which you and the respondent have been living at); or
- You are a cohabitant or former cohabitant of the respondent and the respondent has a right to occupy the home; or
- You are a cohabitant or former cohabitant of the respondent and the respondent does not have a right to occupy the home.
A court must take into consideration all the circumstances when making an order. For example, it will look at you and the respondent’s respective:
- Housing needs and housing resources;
- Financial resources;
- Conduct; and
- The likely effect of any order on the safety, health and well-being of the parties and of any children.
A court will use the ‘balance of harm’ test when deciding whether to grant an occupation order. It will need to consider that you or a relevant child will suffer significant harm due to the respondent’s conduct greater than that which would be suffered by the respondent if the order was granted. For example, it may be that the respondent does not have another house to live in so if the order was made, he/she would effectively be made homeless. Alternatively, if the order is not made and you are at risk of serious harm, this may outweigh the harm caused to the respondent of being without a home (he may, for example be able to afford to stay in a hotel, hence why the court considers this test in the context of your finances).
Procedure
Application form
You make an application for a non-molestation order or an occupation order (or both) using a Form FL401, which can be found on the government’s website here.
Witness statement (evidence)
You will also need to draft a witness statement, which is your evidence of the respondent’s behaviour to be presented to the court. A template can be found here. If, for example, the respondent is physically abusing you, it may assist the court if you send photographs of any injuries or bruises, however minor. If the respondent is verbally abusing you or harassing you, attaching text messages to your statement are useful evidence for the court to consider. Evidence relating to psychological abuse can often be difficult to demonstrate. You should write examples of the abuse in your statement and quote abusive conversations or rhetoric which the respondent has subjected you to and how this has made you feel.
The application will be made either with or without notice to the respondent:
‘With notice’
This means that the respondent will be given prior notice of your application before you have a hearing before a judge who will decide whether the order should be made.
‘Without notice’
If you require emergency protection from the court because you are in immediate danger or significant harm you should make your application without notice. You should complete the application form and statement and bring these to court. You will wait at court to be seen by a judge who will make the order on the same day.
If the judge does not consider that your application is urgent enough to make without notice to the respondent, you can then make the application with notice.
Serving the respondent
A process server will personally serve the order on the respondent. During lockdown, process servers are still working and serving respondents (normally informing the respondent beforehand that they are coming and then leaving the order on their doorstep).
A penal notice will be attached to the order. This means if the respondent breaches the terms of the order, for example by messaging you or turning up at your house, you should call the police who will have a record of the order and they will arrest the respondent. Breaches of non-molestation orders can carry up to 5 years in prison. They are therefore extremely useful deterrents to prevent abuse.
Further hearings
There will be a return hearing which you and the respondent will attend. During lockdown, courts are prioritising domestic violence hearings which are taking place remotely via video link. Respondents do not always turn up.
If the respondent defends the making of the order, you will both be required to come back for a final hearing to give evidence following which a judge will decide whether to keep the order in place.
If you are experiencing domestic abuse and would like further information about making an application or for a completely confidential conversation with one of the solicitors at Burgess Mee, please contact our main number 020 824 9950 or mail@burgessmee.com and ask to speak to a member of our team.
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