Domestic Violence – molestation, occupation and harassment

Protection from domestic violence

In addition to protective powers available to the police, the Family Law Act 1996 has granted powers to the Family Court to make orders protecting qualifying people for protection against physical, psychological and/or emotional harm. To qualify, the protection sought must be against a spouse, fiancée, cohabitee (or ex-cohabitee) or immediate family member. 

Non-molestation and Occupation Orders

If you are related to, or have been in a relationship with, someone who has subjected you to physical, emotional or psychological abuse you may be able to apply for protection under the Family Law 1996:

1. Non-Molestation Order 

You can ask the court to make an order preventing a person from harassing, pestering or molesting you for a specified period of time. This can include protection from such actions as the abuser telephoning the victim, using abusive or threatening language and, of course, physically assaulting the victim.

If granted, this order will include an automatic power of arrest and therefore, if a person breaches a non-molestation order it will be dealt with as a criminal offence. The offender would be arrested by the police and taken before the Criminal Courts in the usual way (maximum sentence five years imprisonment).

2. Occupation Order

The court can override the strict legal rights of ownership and occupation where there is a serious risk of harm arising from their living in the property. Orders can be made restraining the legal owner from residing at, or returning to, the home or give a victim a right to continue residing in the property in which they have no legal rights to the exclusion of the true owner. Since occupation orders are so extreme, they are not easily available and can only be obtained after the Judge’s full consideration of all the circumstances of the case eg. the housing and financial needs and resources of the parties and children involved, the conduct of each of the parties and the likely effect of an order on the health, safety and well-being of the parties and children using a balance of harm test. 

A breach of an occupation order is treated as a contempt of court and a formal application to the court would need to be made for enforcement.

How long will the order last

Non-molestation and occupation orders usually last three to six months, although it may be possible to extend the time period if the circumstances are sufficiently serious.

What can I expect when I make an application?

When you issue an application, you must provide the court with a detailed witness statement setting out what has happened and why you are seeking an order. The initial hearing will either be ‘without notice’ or ‘with notice’:-

1. Without notice

If the application is very urgent, or there is believed to be a risk of harm between the time of issue and the first hearing, then the court can hold the first hearing without informing the defendant. The court will hear the evidence in the application, and may ask some questions about the circumstances. If they consider it appropriate to make an order it will be on a temporary basis only, until the defendant can attend.

2. With notice

The application will be served on the defendant, usually with only short notice, and listed for a directions appointment. The court will see whether the matter can be agreed without the necessity of a full hearing or, if the matter cannot be resolved, will then discuss the arrangements for trial itself (i.e. identify the number of witnesses to be called, length of the hearing etc).

What is an undertaking and should I accept/give one?

One method of resolving applications without the need for a final hearing is for one, or both, parties to make certain promises of future good behaviour to the court. These promises are called undertakings. 

When undertakings are given, no admissions are made about the allegations, and promises are made in similar terms to a non-molestation or occupation order; they should only be used where violence has not been used/threatened.

If the undertaking is breached action can then be taken to enforce the undertaking against the person by bringing the matter back to the Court for committal to prison for contempt.

What are the alternatives?

If there is a risk of ongoing abuse, the victim may wish to consider the option of leaving the home in which he/she is being abused, either on a temporary or longer term basis. Short term alternatives obviously include friends and family but, where this is not possible, there are a number of charitable and Council-run refuges and hostels available on a temporary basis. 

In the longer term, rather than return to the former home, it may be possible in extreme cases, particularly where there has been violence involved, to short-circuit the usually rather lengthy Council/Housing Association waiting lists.

However, the main public authority housing providers may be reluctant to assist on a permanent basis where the applicant is legally entitled as a joint tenant/owner to return to the former home and in these cases, full consideration must be given to whether an application for an occupation order would be more appropriate. 

Protection from Harassment

Finally, whilst is is a slightly different topic, just briefly, where there have been 2 or more incidents of harassment from anyone (not necessarily a connected person as referred to above), you may be entitled to civil or criminal protection under the Protection from Harassment Act. We can give you further advice in this regard.