How can a solicitor help victims of domestic abuse during the Coronavirus pandemic?

If you are a victim of domestic abuse you might feel frightened and alone, especially in these unprecedented and difficult times. At Battens solicitors we are here to help you. You are not alone and you can talk to one of our solicitors in confidence. Our family team have outlined below, what steps you can take and how Solicitors can help victims during the coronavirus.

1)How can a solicitor help victims of domestic abuse during the Coronavirus pandemic?

Appointments can be held virtually by telephone/video. A solicitor’s role in the pandemic remains unchanged and advice and assistance would be provided to protect that individual as far as possible. This might include:

• Advising an individual of their right to leave their home if they are in any danger or at risk of harm;
• Assist in engaging the relevant agencies to support the individual in safe guarding themselves;
• Apply for any relevant protective Orders including a non-molestation order or occupation order.
• If children are involved orders can also be sought with regards to their safety as well as their ongoing contact with either parent.
• Advise in respect of Legal Aid and whether any contribution is required to obtain funding.

2)What is an injunction and how can it help to protect someone suffering from domestic abuse?

An Injunction (known as a Non-Molestation Order) prevents the person who the order is made against (the respondent) from molesting you or any relevant child. It covers not only violence or threats of violence, but any action which pesters you or any relevant child. This may include nuisance phone calls and shouting outside your property.

3)What are occupation orders and non-molestation orders and how can they help to protect someone suffering from domestic abuse?

An occupation order grants the applicant the right to occupy a dwelling-house. The court can decide who should or should not reside in all or part of the home. Occupation orders can also exclude the other person from an area around the home. When in force, an order can also deal with practical matters of occupation, including who bears responsibility for payment of the rent or mortgage on the property and whether the occupying party should pay a rent to the other person. The court's powers to make occupation orders derive from sections 33 and 35 to 38 of the Family Law Act 1996 (FLA 1996). A non-molestation order prohibits a person (the respondent) associated with the applicant from molesting them or a relevant child (section 42, Family Law Act 1996 (FLA 1996)). "Molestation" is not defined in the FLA 1996, but in practice, non-molestation orders are used to protect a party from violence, harassment and threats. The order can cover a wide range of behaviour and is generally used to offer additional protection to victims of domestic violence.

4)What happens if someone breaks the rules of an injunction or order?

A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of a criminal offence (section 42A(1), FLA 1996). That person can only be guilty of an offence if at the time of the alleged breach, he/she was aware of the existence of the order (section 42(2), FLA 1996). The breach of a non-molestation order is a criminal offence and a contempt of court. A contempt of court is capable of enforcement in civil proceedings by making an application for committal. In practice, criminal proceedings will take precedence on public policy grounds. As the breach of a non-molestation order is a criminal offence, the police can intervene to stop a breach while it is happening or where they have reason to believe a breach has occurred. Where the Crown Prosecution Service chooses not to prosecute, the path to enforcement lies with committal proceedings. A respondent cannot be both punished for a contempt in the civil courts and convicted of a criminal offence for the same conduct.

5)What is the application process for an injunction or order and how can a solicitor help?

A non-molestation order can only be applied for by applicants who are associated with the respondent (section 42(2), FLA 1996). An application (FL401), a signed witness statement in support verified by a statement of truth and a draft order in Form FL404a must be filed at Court detailing the reasons for seeking the Order. The application can be made, in the first instance, without the other party knowing (known as an ex parte application). An Order can therefore be made before the respondent is aware of any application so the protection is in place immediately upon service. The Order will need to be formally served by a process server to ensure there is evidence they have received it and another hearing will be listed for the respondent to attend. A solicitor can advise on the most appropriate method of application and assist in preparing your application and statement and also represent you at any hearings. There is currently no Court Fee for this application.

6)What Legal Aid is available for domestic abuse victims?

Providing the victim satisfies the criteria to qualify, public funding remains available to applicants applying for a non-molestation order (section 9 and paragraph 11, Part 1, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2012). This funding is subject to the exceptions detailed in section 11(3). A solicitor can advise you on eligibility and what evidence you will need to provide to apply for legal aid.

For more information from our family team, please contact Louise Gidley on 01935 846058 or email louise.gidley@battens.co.uk

Useful resources:

Womens aid

Refuge

Somerset Survivors