Domestic Violence

Domestic violence, which includes psychological abuse such as intimidation and harassment. Berry Smith can provide you with legal help and guidance regarding any domestic violence that you may have suffered.

The latest Family Law Act has attempted to extend the protection of the law to all abused family members, including cohabitees, engaged couples (even where not living together), brothers and sisters etc. and seeks to protect them from further such abuse. 

We have included below in bold the usual types of orders which are made in cases of domestic violence.

  • A Non-Molestation Order will seek to prevent the abuser from further harassing, pestering or molesting the victim for a specified period of time. This can include protection from such actions as the abuser telephoning the victim, using abusive or threatening language and, of course, physically assaulting the victim.
  • The Courts also have power to grant an Occupation Order which can, on an interim emergency basis, override the strict legal rights of ownership and occupation, thereby, for example restraining the legal owner from residing or returning to the home in which he / she has legal rights of occupation or giving a victim a right to continue residing in the property to which he / she has no legal rights, to the exclusion of the true owner.
  • Since Occupation Orders are so extreme, they are not easily available and can only be obtained after the Judge’s full consideration of all the circumstances of the case, for example the housing and financial needs and resources of the parties and children involved, the conduct of each of the parties and the likely effect of an order on the health, safety and well-being of the parties and children, using a balance of harm test.

Where the circumstances are particularly serious, for example where your ex has used or threatened to use violence against you, the Court will, if it accepts the evidence, make either or both of the above orders. Post July 2007, a breach of a Non-Molestation Order will be dealt with as a criminal offence. The offender would be arrested by the police and taken before the Criminal Courts in the usual way (maximum sentence five years imprisonment).

Where there is any risk of significant harm to the victim or child, or there is a risk that the victim might be deterred or prevented from pursuing the application if the Order is not made immediately, it may be possible to persuade the Judge that an Order should be made on an Ex Parte basis, that is without your ex being present. You should contact Berry Smith lawyers as soon as possible if you wish to obtain injunctive protection. However, thereafter your ex must still, in the usual way, be personally handed copies of the application and supporting papers, together with the Ex Parte Order itself which will contain a date for a full hearing, fixed for the earliest possible convenient date, whilst giving your ex a minimum of four days’ notice to prepare for this and if so advised, sign his own Statement of Truth in reply.

Duration

Both Non-Molestation and Occupation Orders usually last three months although it may be possible to extend the time period if the circumstances are sufficiently serious to warrant this.

Enforcement of Orders

Where the Court is not minded to attach a power of arrest, whilst the police can and should be called where there are further incidents of a criminal nature arising, for example where there has been an assault or a threatened assault, or there has been a breach of the peace, the Order itself can only be enforced by applying back to the Court for your ex’s Committal to Prison for Contempt of the Court Order.  Whether the Court considers the contempt sufficient to warrant an immediate custodial sentence or chooses to suspend such committal to prison unless and until there is a further breach, is a matter entirely at the Court’s discretion and will depend on the nature and severity of the circumstances involved.

Costs on a Private / Legal Aid Basis

Where you are seeking the assistance of the Legal Aid Agency in obtaining an injunction, you must satisfy two additional conditions namely:

  • A formal letter must have been sent to your ex warning against further abusive behaviour; which letter has been ignored, and;
  • You must have sought the protection of the police with possible criminal proceedings.

These are fairly standard conditions and are difficult to avoid.  Failure to comply with either will probably lead to the application for legal aid being rejected on a preliminary basis. In addition, an application to commit to prison for breach of an Injunction Order will, in nearly all cases, require the prior authority of the Legal Services Commission.  It is important, therefore, to contact us at Berry Smith lawyers immediately if you require us to take further action by way of enforcing the Order to avoid unnecessary delays.

However, whether legally-aided or privately paying, you should be aware that injunction proceedings are extremely costly and should only be embarked upon after due consideration of the full circumstances, the alternatives available, the risks involved and the likely costs (including the implication of statutory charge where the client is legally-aided).

The Procedure

The Application must be accompanied by a detailed statement of truth which sets out the background of the matter.  However, even on an ex parte basis, you must be prepared to offer additional oral evidence to the Court, if so required.  In addition, at a full contested hearing of the matter, each party will be obliged to give evidence and be prepared to be cross-examined by the legal representatives of the other party.

Frequently, however, the first time the matter is brought before the Court, the matter will be listed for directions only, which will enable the Judge to see whether the matter can be agreed without the necessity of a full hearing or alternatively, to discuss the arrangements for trial itself, for example the number of witnesses to be called, length of the hearing etc.

Undertakings

It is common practice for an ex, rather than go through the ordeal and / or the costs of a contested hearing, to make certain promises of future good behaviour to the Court called Undertakings.  In doing so, your ex would be making no admissions re past allegations but simply making formal promises to avoid certain behaviour in the future, for example not to come within 150 yards of the house etc.  This procedure has the advantage for you of not having to give formal testimony in Court. However, the Court is now directed not to accept an undertaking where there has been violence used/threatened and this would now generally be applicable only to cases of harassment. An undertaking can only be enforced by bringing the matter back to the Court for committal to prison for contempt.

In addition, given the tight restrictions on legal aid now in place, in circumstances of domestic violence, we would not advise the acceptance of undertakings as only a finding of fact or injunction/restraining order, will be good grounds for obtaining legal aid to deal with ancillary matters pertaining to the separation e.g. children/finances.

Alternatives (both long and short term)

If there is a risk of on-going abuse, you may wish to consider the option of leaving the home in which you are being abused, either on a temporary or longer term basis.  Short term alternatives obviously include friends and family but, where this is not possible, there are a number of charitable and Council-run refuges and hostels available on a temporary basis.  In the longer term, rather than return to the former home, it may be possible in extreme cases, particularly where there has been violence involved, to short-circuit the usually rather lengthy Council / Housing Association waiting lists.

However, the main public authority housing providers may be reluctant to assist on a permanent basis where you are legally entitled as a joint tenant / owner to return to the former home and in these cases, full consideration must be given as to whether an application for an Occupation Order would be more appropriate.  As mentioned above, however, even where the alternative accommodation obtained is intended to be short term, it should be remembered that ultimately, Occupation Orders will be determined by the Courts on the ‘balance of harm’ test which includes, among other things, the housing needs and resources of each of the parties which the other party might seek to argue have, in fact, been met by the alternative accommodation obtained.

Protection from Harassment

Finally, whilst this is a slightly different topic, just briefly, where there have been two or more incidents of harassment from anyone (not necessarily a family member), it may be possible to seek criminal or civil protection under the Protection from Harassment Act.  Berry Smith lawyers give you further legal advice and support in this regard.

We can help you in giving emergency advice (same day if necessary) and support, and when necessary, representation in Court. Whilst each case will be different sometimes a warning letter will be sufficient, and sometimes Court proceedings are necessary to prevent further harassment or in obtaining the removal of the perpetrator from the house.

It is always essential to report all such incidents to the police (whose domestic violence unit officers are trained to support you in such distressing circumstances) and if there are any injuries to seek professional medical advice.

 

Contact Berry Smith Lawyers and speak to our Family Divorce and Children Solicitors for all your issues at our Bridgend and Cardiff offices.

Cardiff 029 2034 5511 or Bridgend on 01656 645525 for a no obligation discussion or further details,

or email us on family@berrysmith.com 

For useful information please see:   www.womensaid.org.uk

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