If you or someone you know is in immediate danger, please call 999.
With the new session of parliament following the recent Queen’s Speech, the Domestic Abuse Bill is ever closer to being brought into UK law. The new Bill will bring in sweeping changes to the protection and support available for those affected by domestic abuse, reform how the justice system carries out its duties, and raise public awareness.
Until the new Bill is passed and changes brought in, the primary ways in which anyone affected by physical, emotional, or coercive abuse can be afforded protection will remain through a non-molestation or occupation order. Both orders vary in their intention, and hence, it is important to understand the differences, and which one to seek.
What is a non-molestation order?
A non-molestation order is designed to stop an individual from use or threats of violence, use or threats of violence to a child, or being molested in any way. It can also be used to keep an offender away from a home or workplace. Molestation is itself defined as any act which “harms, troubles, vexes, annoys or inconveniences an associated person or any relevant children”, and can cover a range of behaviour including:
- Physical harm, such as, pushing, punching, slapping, hair pulling, throwing objects and spitting.
- Verbal abuse or threats.
- Pestering another person.
It is important to recognise that molestation isn’t limited to behaviours in person, it can also include acts which are:
- In writing, e.g. texts, phone calls, social media, messaging
- Via a third party
- Attempts to intimidate
On application for a non-molestation order, a Magistrate or Judge will require evidence:
- Of the threatening or violent behaviour
- That there is a need for protection
- The offender’s behaviour should be constrained by the order
Having reviewed the application for the order, if it is granted (typically for a period of 6 – 12 months initially), formal documents will then be served on the offender – and it is only at this point that the order becomes legally effective. They will be advised at the point of serving that by breaching the order, they will be committing a criminal offence, which could result in up to five years imprisonment.
What is an occupation order?
An occupation order, which is separate to a non-molestation order (but can be applied for at the same time or later), sets out who is legally permitted to reside in the family home, and may prevent named individuals from entering the surrounding area. They are intended to put in place temporary living arrangements (typically for 6 months initially), which then gives both parties the time and space to make long-term plans for where they will live.
When assessing your application, the Court will apply the “balance of harm” test to determine whether granting the order will lead to more or less harm being suffered by the applicant and/or the child. If this test is not passed (i.e. the Court believes there is insufficient evidence to suggest the applicant or the child would be at harm if the order is not granted), this is not the end of the matter. They will then assess other factors for the parties involved, including:
- Their housing needs
- Their financial resources
- The potential impact of the decision not to grant the order on the health, safety or wellbeing of the applicant and any child
- Conduct of the parties to one another.
Who can apply for a non-molestation and/or occupation order?
Under the Family Law Act 1996 (FLA 1996), ‘associated persons’ can bring an application for either type of order, including if:
- They are, were, or intend to be married to the offender
- They are, were, or intend to be civil partners to the offender
- They are or were cohabiting with the offender
- They live or have lived in the same household in a familial relationship with the offender
- They are relatives (parent, stepparent, child, stepchild, grandparent, grandchild, spouse, former spouse, civil partner or former civil partner, sibling, uncle, aunt, niece, nephew or first cousin)
- They have or have had an intimate relationship with the offender (of significant duration).
- In relation to a child, they either:
- are a parent of the child; or
- have or have had parental responsibility for the child.
As such, orders of this nature are not reserved solely for the victims directly affected; family members, can, if they have reasonable concerns for the welfare of an individual, apply to the Courts for their protection.
It is important to remember, no matter what your circumstances, there are legal remedies to ensure your safety and that of your children. If you are in any doubt as to your legal situation and the best course of action, speak to a family law Solicitor as soon as possible. They will listen in confidence and with care to your circumstances and explain your options clearly. You can be assured they will be on your side, and will do the very most they can to alleviate the risks you face and help you to start on the path to a safer and more secure life.
Rosie Bracher is a specialist family law firm based in Barnstaple. We have the knowledge and expertise to immediately assist you with any concerns relating to domestic abuse matters, with the utmost confidence. Please contact our office on 01271 314 904 and arrange to speak to one of our team. If you or someone you know is in immediate danger, please call 999.