Domestic Violence Questions and Answers

A guide to family injunctions from Grants Solicitors

Every year thousands of court orders are made to protect people from violence at home. Some individuals break those orders - and many of them are now serving sentences in prison. This Guide aims to gives you an idea of how the law can help you to stop violence in the home and to remove some of the uncertainty that goes with  taking legal action. It will describe the types of order available to you, and outline the procedures involved. Please call for more information if you are unsure about anything.

Who can apply?

Many different people can apply for a court order against another person with whom they are linked by a domestic or family relationship. These include:

• Those who are, or have been, married to each other
• Those who are, or have been, living together as husband and wife (cohabitees)
• Those who have agreed to marry each other (provided that the agreement did not end more than three  years ago)
• Those who live, or have lived, in the same house (other than as employer and employee, or landlord and tenant, or lodger)
• Close relatives, including parents, grandparents, stepparents, sisters, brothers, uncles, aunts,  nieces, nephews, children, grandchildren, and stepchildren
• Parents of a child, or a person who has, or has had, a 'Residence Order' (which therefore gives  them what is legally known as parental responsibility for that child)
• Where a child has been adopted, or freed for adoption, the natural parents and grandparents of the  child may apply for an order against: the child; the adoptive parents; anyone who has applied to be the adoptive parent, anyone with whom the child has been at any time placed for adoption; and these people can apply for an order against the natural parents or grandparents.

It is possible for a child to apply. Usually someone over 18 must help the child to make the application. If the child is under 16 the court will allow the application to be made only if it is satisfied that the child understands what is involved.

How much will it cost?

Possibly nothing if you are on Income Support or if you can show your savings and income are within certain current  limits. These are set by the Government which has set up the Legal Services Commission to run the Community Legal Service, to assist those on moderate incomes with their legal costs. CLS funding can be obtained very quickly if your case is an emergency, and this emergency cover will last only until the Commission has reached a decision on your full application.

If you do not qualify for a Public Funding Certificate then we will have discussed this with you and written to you separately about payment arrangements in your particular case. If you are successful in your application, the court can order the costs to be paid by the person you have taken to court.

Will my confidential address be given out?

At your request the Court will not disclose your address.  You may give an alternative address, such as that of your solicitor, as long as you ensure that any documents will reach you there. You will have to give your address to the court but it can be withheld from your opponent and excluded from any documents given to him/her.

Can I get an injunction without my partner or former partner finding out?

Again, we will have already discussed this, but in basic terms, if your situation is sufficiently serious, an  application can be made to the court without telling your opponent first. This is called a without noticeapplication. The other party will only find out once he/she is served with the order - that is, when agents  instructed by ourselves deliver the court order and supporting documents in person. It is at this point that order obtained becomes effective.

If we cannot justify going to the court without giving your opponent advance warning, we will arrange for notice of the proceedings and the various other papers to be personally served on him / her.

If the court grants you an injunction without notice, you will almost always have to go back to court a second time, on what is known as the return date, and that is your opponent’s opportunity to put his / her case to the Judge.

Will my friends or neighbors find out if I take legal action?

No. Domestic or Family court proceedings are usually held in private and no-one other than those involved are allowed in. The court has the power to ban any reporting of the details of your case.

Will I have to give evidence and be cross examined?

Probably less than 5% of all injunction cases proceed to a full contested hearing at which you would be required to give evidence. In most cases your sworn statement of evidence is sufficient.

Does going to court mean that my opponent will get a criminal record?

No. An injunction is obtained from the County Court, which deals with civil (not criminal) cases, and is entirely  separate from any criminal prosecution proposed by the police. You may wish to prosecute as well, in which case the police will take a statement from you and decide whether to start criminal proceedings in the magistrates' court on your behalf.

Remember, however, that a criminal conviction for assault, whilst punishing the offender, will not give you the  protection of a court order forbidding further violence or Harrasment.

How do I make an application?

Once Public Funding has been approved or private terms of business agreed, we will prepare a statement for you, setting out the factual background as you have described it to us. To present your case effectively it is important to be accurate as you can about dates and details of incidents. It will help greatly if you make some notes about anything further that happens, the sooner the better, before the details fade. It is not necessary for there to have been a witness to an assault or an incident, although it may assist (provided the witness(es) are prepared to be involved). Details of medical treatment or police involvement will also be very helpful.

The other main document we prepare is an application form for the court, the details of which we take care of for you.  You are referred to as the Applicant, whilst your opponent is the Respondent.

What happens at court?

In a without notice application, where the proposed Respondent is not present or aware of the action, your statement will be provided to the judge. This is the evidence upon which we will be asking the court to make an order - by doing it this way, we usually avoid the need for you to have to say anything yourself, unless of course the judge  has any questions. It is likely that the Judge will order a further hearing after making an order for your protection and the Respondent will be notified of this hearing when he/she is served.

In an application on notice, or on a return hearing following a without notice application, where the Respondent is told of the Court proceedings, what happens will depend on what that person chooses to do:-

• If the Respondent fails to appear, an order may be made in his/her absence.
• If the Respondent does come to court and wishes to resolve things without too much argument, he/she  may be prepared to give `undertakings' to the judge.
• If the Respondent appears at court and indicates a desire to contest your application, it is  unlikely that the court would deal with it there and then - it would require the Respondent to prepare a statement in response to yours and request all involved to return on another occasion when there was time to hear from  the parties, decide who is to be believed, and thus what, if any, order to make. Any order you had already been granted would usually stay in force until that further hearing.
• It is our policy to represent you ourselves as much as we possible can. There may be situations, however, when  circumstances do not allow this. In those situations we would propose to you that we instruct a barrister to represent you at a particular hearing. We will of course discuss this with you further should the need arise.

What are undertakings?

Undertakings are promises as to his/her future behaviour made by the Respondent to the court, not to you. These have the  same force as a court order. The idea is usually to avoid the judge having to hear the evidence to decide who he believes is telling the truth. This can be a reasonable way of settling the case, depending on the circumstances, but no power of arrest (please see below) can be attached to undertakings. For this reason, serious cases will merit a full injunction order being made whether the Respondent is prepared to make such a promise or not, and the  law recognises this.

If a person breaks his undertaking, it is punishable in the same way as if it were a breach of a court order.

What orders can the court make?

One or more of the following :-

Non-molestation order

This deals with the Respondent’s behaviour.  It can forbid a person from pestering, threatening or being violent to another person or to any child involved.  If appropriate, the court can also make more specific orders - for example, that the person is not to telephone you, or go to your place of work. The court’s standard form of order also forbids the Respondent to get anyone else to do such things on his / her behalf.

If you need the Respondent kept away from your home, and the Respondent has not lived with you there, then a  non-molestation order can be used to forbid him/her from coming within a certain distance of that property.

Occupation order

This relates to your home, when it is a property at which the Respondent has lived with you. It can require the Respondent to leave the home, either immediately or within a specified period of time, and once gone, not to come back within a certain distance of the place.

Alternatively, if you have had to leave because of the situation, the Respondent can be required to allow you back in  and remain there. If needs be, the court can go on to decide what rights those involve should have to occupy the home.

This may be a temporary or a long term measure, depending on the circumstances, and has no effect on ownership or other property rights. If the property is sufficiently large, the court may attempt to divide its use up so that both parties can remain.

What is a power of arrest?

This is specifically attached to certain paragraphs of the order. If you have trouble from the Respondent, you should of course call the police at once and remember to let them know that you have an injunction with a power of arrest. If they believe that a breach of your order has taken place, the power of arrest is authority for the police to arrest the Respondent.

What happens if court orders are disobeyed?

If there is a power of arrest attached to the order that has been broken, you should tell the police immediately and let us know as soon as possible.  If an arrest is made, the person is brought before the court within 24 hours of arrest. Whilst we appreciate that it may be an upsetting time for you, the court will expect us to be able to explain what has happened, so you will need to give us as much information as you can.

If there is no power of arrest, the police cannot act unless a criminal offence has been committed.  However, you can instruct us to take the case back to court because the Court Order has been disobeyed. This may involve an application simply to extend the duration of the injunction, or it may be to apply to commit the person to prison for contempt of court. These proceedings ('committal proceedings') for enforcement of the order or undertaking are held in open court (meaning anyone can attend the hearing) and the case must be proved 'beyond reasonable doubt'.

The court has a number of potential sentences available to it if contempt of court is proved, ranging from a fine,  through suspended prison sentences, to immediate imprisonment for up to two years.

How long does it take?

We would aim to make without notice applications within 48 hours of grant of Public Funding. A return hearing would  usually be 7 or 14 days after the initial hearing. Because of their emergency nature, an injunction case would often be concluded within a month. These can only be estimates, and the actual length of your own case can vary  depending, amongst other things, on the behaviour of the Respondent and the availability of court time.

Who deals with the Respondent, and when will he/she be contacted?

As your lawyers, we will deal on your behalf with the Respondent, or any solicitors he/she may instruct. In the majority  of cases, unless you instruct us otherwise, we do not contact the Respondent until we have court papers or orders to serve on him. We employ process servers to personally deliver any necessary papers. However, should you be contacted by the Respondent direct, you should refer him to us or, if that contact is unwanted, threatening or indeed a breach of an order, you should call the police.