What protection is available for victims of domestic abuse?

Ivan Taffin de Tilques, a trainee solicitor, outlines the legal protections available for victims of domestic abuse and the court can determine and secure your rights to occupy a property.

Christmas can be a magical time. Sadly for some, the Christmas period is also a time filled with fear and anxiety particularly if their relationship has broken down or if they are forced to remain living in the home with their abuser. Whatever situation you find yourself in, our Q&A, together with our fictional scenario, outlines the key features of the two most common injunctions sought by victims of domestic abuse:

• Non-molestation order – protecting you from current and further abuse
• Occupation order – establishing your rights to occupying your home

Fictional scenario

Mark and Lee are married living together in a rental property in which the tenancy is in their joint names with their three children aged 6, 13 and 16. Mark has his own business as an Electrician. Lee, throughout the relationship has always worked part time to fit in around caring for the children.

Recently Mark became abusive towards Lee and the children threatening violence and subjecting them to emotional abuse; consequentially the relationship has broken down.

After several months of enduring Mark’s constant abusive behaviour, Lee is exhausted and has decided, she had had enough. Lee wants to find out what she can do to protect herself and the children, and stay safe. The children have been negatively impacted by Mark’s abuse. The middle child has attempted suicide, whilst the other two have been unable to perform well at school. Lee is concerned that the toxic environment in the home will affect the oldest child in their GCSE examinations next Summer.

Lee is contemplating obtaining legal orders to stop the abuse and keep Mark away the home so the children don’t suffer further from his abusive behaviours. However, she is anxious about having to attend court with Mark. Lee would like to stay in the property which has always been their home and is near to the children’s school. Lee wishes to minimise the disruption to their lives because of the breakdown of family life.

Lee could apply for a non-molestation order, an occupation order or contact the Police and ask for either a Domestic Violence Protection Orders (DVPOs) or Domestic Violence Protection Notices (DVPNs)

WHAT IS A NON-MOLESTATION ORDER (“NMO”)?

A NMO is a type of injunction granted by the Family Court which protects an individual from abuse or harassment. It prevents the abuser (in this case, Mark) and any party instructed by him from using or threatening violence against Lee, or from intimidating, harassing or pestering her and the children. With the granting of a non-molestation order in her favour, and once Mark has been served, Lee can feel safer knowing that if required, she can immediately call the police to report a breach by Mark of any terms of the order. By breaching a non-molestation order, Mark would be committing a criminal offence and could be arrested.

What types of protective measures can be put in place by an NMO?

• Protection against violence or the threat of violence
  Mark must not use or threaten violence against Lee, and must not instruct, encourage or in any way suggest that any other person should do so
• Protection against intimidation, harassment or pestering
  Mark must not intimidate, harass or pester Lee and must not instruct, encourage or in any way suggest that any other person should do so.
• Zonal protection
  Mark must not go to, enter or attempt to enter any property where he knows or believes Lee to be living, and must not go within x number of metres of any property and / or along the road of any address where he knows or believes Lee to be living and / or working.
• Protection against further contacts
  Mark must not telephone, text, email or otherwise contact or attempt to contact Lee, (including via social networking websites or other forms of electronic messaging) except through her solicitors.

What is the duration of an NMO?

A non-molestation order can either be granted for a specified time or until further order from the court. An NMO is usually granted for either 6 or 12 months.

Can an NMO be extended?

Extensions can be granted at the court’s discretion, but application must be made before the original order expires. The court will then have to consider whether there is a continued threat and/or whether there have been breaches of the current order.

WHAT IS AN OCCUPATION ORDER (“OO”)?

This is another type of protective injunction that determines who can remain living in the family home if the parties are unable to agree. It can exclude the abuser from the home or part of it. This order helps to secure a safe living arrangement for the abused party. In Lee’s case, an occupation order would allow her to stay in their shared rental home with the children and exclude Mark from entering and residing in the property. There does not need to be physical violence and/or reprehensible conduct.
What is the duration of an occupation order?
The Court can make an OO for indefinite or for a defined period.

What conditions are usually considered for the granting of an OO?

• The housing needs and resources of both parties and the children
• The finance resources of each party
• The likely effect of making or not making the order on the health, safety or well-being of both parties and any children (‘balance of harm’)

In Lee’s situation, the court would look at how Mark’s presence affects the safety and well-being of Lee and the children. As a result of the grave effects the abuse had on the children, the court will in all probability grant the order to exclude Mark from the home.

DOMESTIC VIOLENCE PROTECTION ORDERS

There are specific emergency powers that police can used in the aftermath of an incident of domestic abuse. If Lee is undecided or indeed anxious about attending Court, she can contact the Police and ask for either a Domestic Violence Protection Orders (DVPOs) or Domestic Violence Protection Notices (DVPNs). This is protective measure that was introduced across all police forces in England Wales from 8 March 2014.

What is a Domestic Violence Protection Notice (DVPN)?

A DVPN is a notice that a police officer of the rank of Superintendent or above can issue in an emergency against a perpetrator of domestic violence to protect the victim(s). It is in effect an emergency non-molestation and eviction notice.

A DVPN effectively provides an exhausted Lee with temporary protection and importantly some much-needed respite and time to think away from the pressure that Mark may want to continue applying on her and the children.

If a DVPN becomes effective when it is issued by the police, it will still require the police to make an application to a magistrates’ court for a DVPO to be issued. This needs to be done within 48 hours of the DVPN being served on the perpetrator.

What is a Domestic Violence Protection Order (DVPO)?

DVPOs fill a “gap” in providing protection to victims by enabling the police and magistrates’ courts to put in place protective measures in the immediate aftermath of a domestic violence incident where there is insufficient evidence to charge a perpetrator and provide protection to a victim via bail conditions.

In our case, if Mark is not put on bail, the DVPO can prevent him from returning to their home and from having contact with Lee and the children for up to 28 days. This gives her and the children extra time to further consider their options and ideally get the support and guidance they need from a dedicated domestic abuse service.

Breaches of the DVPN or the DVPO

Breaching a DVPN or the DVPO is an arrestable offence.

The police can arrest Mark without the need to apply for a warrant if they have reasonable grounds for believing that he is in breach of either the DVPN or the DVPO.

If in doubt about your personal circumstances, please contact Linda Pope.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.