The most recent Crime Survey for England and Wales reported that 757,000 men and 1.6 million women had experienced domestic abuse between March 2019 and March 2020, with a 7% increase in police recorded domestic abuse crimes.
In this blog, Silk Family Law shares advice on the types of orders you can seek from the court to protect you and your family from abuse and the factors the court will consider when making a decision.
How can the court help you? Occupation Orders & Non Molestation Orders
If you are or your family are at immediate risk of harm, it is important that you call the police immediately. However, there are also protective orders you can obtain through the court. These include a Non-Molestation Order and/or an Occupation Order.
Non-Molestation Orders prohibit a person associated with the victim of domestic abuse from “molesting” them or a relevant child. These types of orders are used to protect a party from violence, harassment and/or threats. A breach of a Non-Molestation Order is an arrestable criminal offence.
I discuss the types of abuse that these orders provide protection from in my recent video over on our Injunctions and Emergency Relief page.
Another type of order the court can make is an Occupation Order which grants you the right to occupy your home. The court can decide who should or should not reside in the family home. Occupation Orders can also exclude a person from an area around the home. A power of arrest may be attached to this type of order if the respondent has used or threatened violence against the applicant or a relevant child and the court believes the applicant and/or child would not be adequately protected without it.
What factors does the court consider in domestic abuse cases?
Before making an application to the court for one or both of these types of orders, you must show that you are associated with the perpetrator of the abuse. A person is “associated” with another if they fall under one of the following categories:
- They are, were or intend to be married to each other.
- They are, were or intend to be civil partners to each other.
- They are or were cohabitants.
- They live or have lived in the same household in a familial relationship.
- They are relatives.
- They have or have had an intimate personal relationship of significant duration with each other.
- In relation to a child, they either:
- are a parent of the child; or
- have or have had parental responsibility for the child.
In deciding whether to make a Non-Molestation Order, the court will need to have regard to all the circumstances of the case, including the need to secure the health, safety and wellbeing of the applicant and any relevant child.
In deciding whether to make an Occupation Order, the court must have regard to the balance of harm test. This is where the court must balance the harm that would be caused to the applicant, the respondent and any relevant children, if the occupation order was or was not made. The court must have regard to this test as ultimately, they may be excluding one party from their own home.
In making this decision, the court must also consider all the circumstances including, but not limited to:
- The financial resources of the parties
- The housing needs and housing resources of each of the parties and of any relevant child
- The likely effect on the health, safety or well-being of the parties and of any relevant child if they were not to make an order
Image credits: M. (header) and Luke Pennystan on Unsplash