Stuart Barton (Head of Department) and Paula Fraser
The breakdown of any relationship can be difficult to deal with. Common problems that parties encounter in these circumstances are:
• Threats of violence or the use of violence
• Verbal abuse, intimidation and controlling behaviour
• Harassment following separation
• A refusal to leave the family home
If these problems cannot be resolved amicably, it may be the case that an injunction is required.
The Family Law Act 1996
Family injunction orders are normally made under the Family Law Act 1996. They are available in two forms:
These often provide for the removal of the perpetrator from the family home or, if the perpetrator has already left, guard against their return to the home. They can also be applied for when the question of occupation of the family home is in dispute.
These prevent the perpetrator from harassing, using or threatening violence against the victim.
Legal Aid (public funding) may be available to pursue an injunction order.
‘Without notice’ injunctions
Depending on your circumstances, it may be necessary/desirable to make an application for an injunction without telling the perpetrator about it initially. This is known as a ‘without notice’ application. Such applications are very rare for occupation orders. They are more common for non-molestation orders but should still be viewed as exceptional.
If a without notice order is made, the injunction is temporary. A further hearing is listed at the earliest opportunity to provide the perpetrator with an opportunity to attend at court and provide their version of events. ‘Without notice’ orders are seen as exceptional and are not made lightly. The person in charge of your case will advise you over whether your circumstances justify making such an application in the first place.
If the perpetrator does wish to dispute the application for an injunction order, the court must consider what further evidence is required and the case is listed for a contested further hearing so a judge may decide whether the order is required or justified.
An undertaking is a formal promise by a person to the court to refrain from a specific course of action. They are used often as a negotiation device within injunction applications. Once a person gives an undertaking, no findings are made that they have been responsible for incidents of violence or harassment. However, if that person should subsequently breach the undertaking, they are guilty of contempt of court and may be punished by a fine and/or a prison sentence.
Service of an order
Whenever any injunction order is made, the terms of that order only become effective once they have been brought to the attention of the perpetrator. In the case of a ‘without notice’ order, both the injunction order and the original application must be personally served upon the perpetrator. A good quality photograph/description of the perpetrator and full details of their likely whereabouts will help to ensure this is done quickly. If an injunction order is made in the presence of the perpetrator, they are bound by its terms but should still be personally served as good practice. If a perpetrator should breach an injunction order, the consequences depend on the type of order.
Breach of an Occupation Order
When the court deals with an application for an occupation order, they must consider whether to attach a power of arrest to the order. This means that if the perpetrator breaches the order, the police can be notified and the perpetrator can be arrested. In most cases the court will see it as desirable to attach a power of arrest.
If an occupation order is breached that does not have a power of arrest attached, an application must be made to the court in the first instance for the issuing of a warrant of arrest. Once the warrant is issued, it falls to the police to find and arrest the perpetrator.
In cases where there is already a power of arrest attached to an occupation order (or where a warrant is issued and the perpetrator arrested), the perpetrator should be brought before the court within 24 hours after their arrest. It then falls to the court to determine the facts and decide whether a breach of the order has occurred. If the court is satisfied that a breach has occurred, they may:
• Imprison the perpetrator immediately
• Suspend the imprisonment for a period of time on the condition that a further breach will activate the prison sentence
• Fine the perpetrator
• Make a further/different order
Breach of a Non-molestation Order
Since July 2007, if the perpetrator should breach a non-molestation order, this is a criminal offence and it falls to the police to arrest the perpetrator. The Crown Prosecution Service (CPS) must then decide whether to prosecute the perpetrator and if they are convicted of this offence, they can be fined or sent to prison. This means that the victim needs to provide evidence to the police as part of any investigation and may have to attend at court as well.
Duration of orders
An injunction order normally lasts for 6 months. If necessary, an application can be made to extend the scope of the injunction and its duration. No injunction order can last indefinitely.