Fri, 17 Apr 2020
There has been a ‘lockdown’ in place in the United Kingdom since 23rd March 2020. It is becoming a progressively prevalent issue that there are increasing levels of domestic abuse being perpetrated given the confinement of victims with perpetrators of abuse. This is a frequent issue of which Practitioners will already have a strong awareness but there is likely to be a substantial increase in cases coming to court as we come out of the Corona Virus restrictive measures.
There are a number of legal tools available to people who have experienced domestic abuse. These include Non-Molestation Orders and Occupation Orders which can be made to protect both the individual and their children from an alleged perpetrator of abuse. Additionally, steps may need to be taken to protect children from an adult with Parental Responsibility for them. The logical measures to implement in that situation would be a Child Arrangements Order and a Prohibited Steps Order while investigations and analysis are undertaken as to what is in the best interests of the Child over a longer period.
If you have found this article as a victim of abuse then please call the police, the measures do not require you to remain in a home or situation where you or your children are unsafe. They should not be interpreted as such. The Government and the Police are urging people to contact emergency services if they are at risk so they can be protected and measures taken to remove them to safety. In addition, Women’s Aid hotlines are still operational and refuges are still accepting women and children at risk. There are options for you – even in ‘lockdown’.
Courts are continuing to allow the issuing of applications and dealing with cases wherever possible, more detail on the orders advised above is set out below.
The first step in seeking protective, injunctive relief is applying for a non-molestation order. Any person facing domestic abuse should consider applying for a non-molestation order under Part IV of the Family Law Act 1996. They are the Family Law equivalent to a criminal restraining order and are used to protect individuals from ‘molestation’ (violence, harassment and threats) as set out in s42 FLA 1996.
There is a raft of case law to assist practitioners in assessing what qualifies as ‘molestation’ that can be consulted if the abuse suffered is not immediately apparent. Acts and threats of violence Davis v Johnson  AC 264 are an example of circumstances in which the court have found molestation. Any applicant who cites behaviour of domestic abuse that falls within the definitions set out in Family Procedure Rules PD12J, paragraph 3 are thought to satisfy the criteria for a Non-Molestation Order, particularly if both parties are Litigants in Person Mr R v Mrs R  EWFC 48.
A non-molestation order provides protection by establishing a court order prohibiting certain actions or behaviours by the Respondent.
These ordinarily include;
- violence or threats of violence
- contacting the Applicant
- posting on social media about the Applicant
- attending the Applicant’s address/ place of work
- damaging property.
The order needs to specify the behaviour complained to ensure that the Applicant is thoroughly protected. Breach of a non-molestation order is now an arrestable criminal offence s42A, FLA 1996. This entitles Applicants in receipt of an order to call the police upon any breach.
Individuals eligible to apply for a non-molestation must fall within the definition of an ‘associated person’ set out within s62(3) FLA 1996. This covers anyone related, married/ civil partners, engaged, cohabiting or in a significant personal relationship (usually of six months or longer). It is good practice for applications to set out clearly which section of the FLA 1996 is relevant to the parties’ association.
The applications can also be used to protect children that fall within the definition of a relevant child s62(2) FLA 1996; living with or might live with either party to proceedings or whose interests the court consider relevant. Applicants should consider availability of the inclusion of children in the order, particularly if the children have been witness to or a victim of violence.
Any applicant must fill in form FL401, which is £75, and attach a witness statement detailing their reasons for applying for the order. As always, applications should be accompanied by draft orders to assist the court in the administration of any order.
The criteria for a non-molestation order is to consider “all the circumstances including the need to secure the health, safety and well-being of the applicant or of any relevant child” s 42(5) FLA 1996.
This is considered within a three-stage check list;
- There must be evidence of molestation C v C (Non-Molestation Order: Jurisdiction)  1 FLR 554, FD; and
- The Applicant (or child) must need protection; and
- The Judge must be satisfied on the balance of probabilities that judicial intervention is required to control the behavior which is the subject of the complaint C v C  EWCA Civ 1625
These criteria should be at the forefront when writing a witness statement on behalf of a client. Though individuals can often have long narrative backgrounds which lead to the present situation, the superfluous information may detract attention from the most important details. It is good practice to cover the date on which the abuse began, the most recent abuse and the most serious/significant incident. This gives the court an overview of the circumstances and assists in quickly demonstrating that the criteria for making the order are fulfilled.
It is quite common that an Applicant will have evidence of any abuse beyond their own account, this may include text messages and social media screenshots. These can be exhibited at the end of a statement and should be presented appropriately. It is important that these are legible and clearly presented. Practitioners should confirm with a client if they have any contemporaneous evidence as early as possible. If a large volume of evidence is available it may be necessary to ‘cherry pick’ the evidence which is directly related to incidents set out within the statement.
Non-Molestation Orders are heard with notice to the Respondent as a default. However, orders can be made without the Respondent being notified or present at court. These ‘ex parte’ orders will only be made if it is “just and convenient” to do so s45(1) FLA 1996. When notice is being withheld it is essential that the application makes that clear on the face of the application and on the draft order. In cases of serious abuse, or where there is a level of fear that may deter the Applicant from pursuing the order if notice is required then this should be the first consideration for those representing them.
Non-molestation orders will initially be made until a specified return date or until further order of the court. Orders are frequently made for 6 months or a year. They can be made for a longer duration when required as there is no maximum length under s42(7) FLA 1996. However, the expectation should be, except in very serious cases, for a 12-month order.
Significantly a breach of a non-molestation order is a criminal offence and would leave the perpetrator at risk of criminal charges.
If an individual is facing abuse or violence from a person within their home, then practitioners should also consider applying for an occupation order. An occupation order grants the applicant the right to occupy a dwelling-house or to exclude a person from a house. They can also be used to determine which party is responsible for paying the rent/mortgage. As a result of their powers, Occupation Orders are draconian and are only made in exceptional circumstances G v G (Occupation Order: Conduct)  3FCR 53.
Occupation orders fall into two categories which are determined by whether or not the applicant is entitled to occupy the house. Entitled applicants are governed by s 33(1)(b) FLA 1996 and non-entitled applicants by s 35, 36, 37 and 38 FLA 1996.
Following an assessment of the above checklist, the court must perform an assessment of the ‘Balance of Harm’: is the applicant or relevant child likely to suffer significant harm (as defined by Pt IV FLA 1996 attributable to Respondent if an occupation order is not made?
The court can make an occupation order using the core criteria test and other factors listed in s 33(6) FLA 1996. The court will have regard to all relevant circumstances, including;
- Parties housing needs
- Parties’ financial recourses
- Consequences on the health, safety or well-being of the parties and of any relevant child.
- Parties’ conduct
The likely duration of an occupation order will depend on which section of the FLA 1996 was relied upon to make the application.
A power of arrest can be attached to an occupation order s 47 FLA 1996.
As with the Non-Molestation Order, the application is made by Form FL401, a witness statement and a draft order Form FL404a.
One of the options that may be pursued is a Child Arrangements Order to regulate contact with any person accused of abuse between them and a Child they have parental responsibility for. It can also establish with whom a Child should live. This can be a lengthy process involving fact finds, assessments by Cafcass Officers and will not necessarily offer immediate protection. Nevertheless, a Prohibited Steps Order can also be sought on an urgent basis to protect a child from being removed from the care and control of someone who holds parental responsibility.
Any person with parental responsibility has the right to make decisions relating to a child. When an alleged perpetrator of abuse holds parental responsibility, the court can use a Prohibited Steps Order to curtail the right and responsibility to make these decisions s8 (1) Children Act 1989. This can include restricting and preventing contact between a parent and a child.
An application needs to be made via a C100 Form with a court fee of £215, this can be filed in person or by post.
It is possible to seek a without notice hearing by completing a C2 form, or it can be made on short notice to the respondent (this is required for any length of time, abridged to less than 14 days under FPR 12.16, paragraph 29). This is relevant where the matter is urgent – for example threats have been made to remove the child from the care and control of one party with parental responsibility by another party with parental responsibility. This may also be applicable where a Parent has refused to return a child after contact – an order can be sought on an urgent basis to ensure that the child cannot be removed from the care and control of the Parent with whom they reside. This would mean they would have to be returned immediately. Additionally, it can apply where there is a threat to remove a child from the jurisdiction. An example of this would be a prohibited steps order to prevent them being taken abroad or for any application of new travel documents on their behalf. Re S  WLR 211 sets out that for a without notice order to be allowed all relevant circumstances will have to be disclosed within the application.
There are several circumstances in which the court cannot make a Specific Issue Order or a Prohibited Steps Order. These include:
- to decide the identity of person(s) with whom the child will live or to achieve the same result that would otherwise be achieved by making a CAO s 9(5) CA 1989
- For a child aged 16 or over, unless the circumstances are exceptional s 9(7), CA 1989
- That continues beyond the child's 16th birthday (in relation to an order made before the child turns 16 years old), unless the circumstances are exceptional s 9(6), CA 1989
- The court cannot use a PSO or SIO in any way that is denied to the High Court by s 100(2) CA 1989
The test for making the order is that the court must be satisfied that doing so will be better for the child; in essence this means considering what is in the child’s best interest.
Essentially it can provide protection on an urgent basis for a child to prevent them being removed by a person with parental responsibility. As with non-molestation orders a breach of a prohibited steps order is a criminal offence and can result in charges, it also allows the Police to have powers to enforce the terms of the order against a party with parental responsibility.
Withholding Of Details
If your Client is concerned about the respondent being provided with information about them then you can file form C8 to keep their address and telephone number private. This application is governed by FPR 2010 r29.1.
While we are in ‘lockdown’ a number of courts are not open to the general public. However, this does not mean that hearings are not continuing. Urgent hearings such as the above are being prioritised and are continuing as normal. Your clients still have access to assistance and protection.
A brief overview of local courts shows that Birmingham County Court remains open to the public as does Telford Civil Justice Centre. This means that applications can be provided to these two courts in person. However, all other courts are staffed. This means that applications can be submitted by post and will be processed. It is important to make Clients aware that this is the process.
This situation may cause difficulties for Litigant’s in Person who do not have awareness of the changes in court staffing and therefore are not aware of how to apply – this information should be pushed out wherever possible to ensure those that need protection can still seek it.
Hearings are being held by telephone, using BT Meet Me or through Skype for Business predominantly. In person hearings are reserved for where all other options are exhausted and, in most courts, require the consent of the District Family Judge. The above applications are likely to be held remotely. This does not exclude Litigant’s in Person who can be dialled in. On a practical note, if you represent a Party in the above applications then please take full instructions where possible prior to the hearing as the time slots are extremely limiting for the actual hearings themselves.
The Legal Aid Agency is still staffed. They are therefore still processing applications for legal aid which some Clients may qualify for.
As mentioned at the outset the Police are still assisting victims of domestic violence in leaving their homes and seeking protection. Domestic abuse charities are still operational, providing support by phone lines and continuing to operate refuges. No one should legally or practically have to continue to remain in a situation which is unsafe for them or their Children.