If you have been subjected to domestic cruelty, you may wish to apply for a civil injunction or protection order to gain protection from an abuser. An injunction is a court order that requires someone to do or not to do something. One main type of injunctions is an ‘Occupation Order’.
An occupation order would be an appropriate medium of protection if you consider yourself unsafe living with your partner, perhaps due to being subject to acts of violence and consequently you may have left home but want to return and exclude your abuser. In this way the order regulates who can live in the family home, and come within the surrounding area.
It is worth noting however, that such orders may not work for everyone the same way and in some such cases it may even be counter productive. The courts do require that there has been a sufficient level of harassment to warrant an intervention order. The abuser must have acted deliberately so as to harass the applicant.
Firstly there are eligibility criteria to making an application. To apply for an order, one must be an ‘associated person’ or associated with the respondent in one of the following ways:
⁃ Civil partnership
⁃ Cohabitation or former cohabitation of (inc same sex cohabitation)
⁃ Living in the same household
⁃ Relative (blood or otherwise)
⁃ Persons with parental responsibility for the same child
⁃ You have an intimate physical relationship of a significant duration
⁃ You are parties to the same family proceedings
Where there is association by marriage or civil partnership with the other person, you are entitled to apply as of right, irrespective of any right to occupy the home. That is even if you are divorced or have obtained dissolution.
For all other scenarios you have to have lived in the property with the respondent as you home, or had intended to do so, and have a legal right to occupy the home (as joint or sole tenant or owner of that home). This would cover cohabitees who buy a home together but never move in.
The court will apply a ‘balance of harm’ test when deciding whether to make the order to determine who will suffer the most harm if an order is not made.
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).
How long does it take to get an injunction?
Cases where imminent danger in anticipated, an application can be made to the court on the same day without your abuser being there. 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.
Evidence by you
You will need to make a sworn statement to the court about the physical and emotional abuse you have experienced physically and emotionally, including the dates and times and the effects on you and your children.
It will help to have a record of past events and records as the courts will require every possible evidence available.
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 solicitor 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.
The order can be limited up to 6 months in some cases or up to an indefinite period, although unlikely to exceed 6months.
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).
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.
If you have been affected by any of the information discussed above, and would like legal advice contact our Family Law solicitors on (0116) 2999199 for a FREE initial consultation.