Call The Police!
Domestic Violence is a crime and the police are obliged to investigate. you have been assaulted you should tell the police as soon as possible. you are in fear of imminent danger of assault you should call 999.
The police will arrest the perpetrator and if charges are brought bail conditions may be set. Normally this will order the accused to stay away from you.
Harassment is behaviour which is unwelcome to the victim such as stalking, telephoning, contacting the victim at their house or place of work. Generally making contact or attempting to see the victim when it has been made clear that these attentions are unwelcome. If you are being harassed then the police can protect you under the Protection from Harassment Act 1997.
Police Harassment Help
In the first instance the police will warn the perpetrator not to contact / follow / text etc. the victim. They will warn the perpetrator that their behaviour is regarded as harassment and if they do it again they will be arrested for it.
It is possible to take a civil injunction against a spouse or co-habited or other “associated person” that is violent towards you or threatens violence against you. The court order will specify what behaviour the person guilty of violence or harassment is prevented from doing.
Ex Parte Hearing
In urgent cases it is possible to apply for an order without giving notice to the respondent. This normally happens where violence has taken place and the victim is alarmed that if the defendant is given notice of the hearing further violence will occur.
In these circumstances the court will grant the order provided it is satisfied on the balance of probabilities that the victim has suffered violence or is in genuine fear of violence and will list an early hearing return date for the defendant to present his evidence.
Defence To Breach of a Non-Molestation Order
It is criminal offence to breach a non-molestation order without a reasonable excuse for doing so. This removes the need for the victim to return to Court to seek a warrant for the perpetrator’s arrest where an order had been issued without a power of arrest, if the order was breached.
Because a breach of a non-molestation order has become an arrestable criminal offence and it is no longer necessary for the civil courts to attach a power of arrest. Non molestation orders now have to clearly state that not complying with the order is a criminal offence punishable with up to 5 years imprisonment or as a contempt of court.
The Options Therefore Upon Breach
The victim can either contact the police who will deal with the breach as a criminal offence.
Or return to the civil court that granted the non-molestation order for the breach to be dealt with as a contempt of court.
You can seek an order from the court that the perpetrator of violence is prevented from occupying or returning to the home. This is regardless of who owns the property legally and will provide the victim with the right to occupy the property.
An occupation order is a draconian measure, it ousts the respondent from their home and therefore ex parte without notice, occupation orders will only be made in extreme circumstances.
When considering whether to grant an occupation order the court will apply the balance of harm Test. It will review all the circumstances of the case including the health, safety and welfare of any relevant children and decide whether less harm will ensue by granting the order.
If it appears to the Court that the Respondent has been violent or there is a risk of violence then a power of arrest must be attached to an occupation order.
An order of the court can only take effect when it is served on the respondent. Personal service of the documents is required and the victim is required to confirm how and when personal service took place to the court.
The respondent will be given the opportunity to file a sworn statement in response. The respondent has three options:
- Submit to the order
- Offer undertaking
- Defend the application
Submit to the Order
If the respondent chooses to submit to the order he/she needs to fully understand the implications of the power of arrest if this is included. Normally an order will last for 6 or 12 months. At the end of that period, if the victim is still in fear of the respondent, victim can apply to the court for an extension.
This is a promise to the court not to do or to do something, eg to not contact the victim. If a breach takes place then you can apply to the court for a committal application. The victim must first serve a penal notice.
It is for the victim to decide whether to apply back to the court, this does not offer the same swift root but does protect the victim if an undertaking is breached.
Breaching an undertaking is not automatically a criminal offence and no power of arrest cannot be attached to an undertaking so the victim has to consider this carefully before accepting the compromise of an undertaking.
Frequently matters are settled via undertaking and this saves the court time of a contested hearing. The court will also consider whether an undertaking offers sufficient protections for the victim given the seriousness of the violence alleged.
Defend the application
If the respondent refuses to accept the allegations made then the matter will be set down for a fully contested hearing and each party will submit evidence they wish to rely on and any other witness statements.
Depending upon the volume of evidence and/or the number of witnesses the hearing normally lasts between 1 to 3 days. This can be extremely costly and you may be liable for the other party’s costs if you lose.