Domestic violence and the legal system
Domestic violence can be dealt with through the County Court as a civil remedy. Many women can get legal aid, but if they are in full-time employment it is likely that they may have to pay legal costs, this can be by way of a monthly contribution.
For further information on legal issues see the Community Legal Service website.
Non-molestation injunction orders
Any person suffering domestic violence can go to a solicitor and apply
for a non-molestation injunction order. This can be useful in an emergency
as it can be granted on the same day it is sought. This type of order
can prohibit physical violence, sexual violence, harassment, pestering,
emotional abuse towards the woman, her children and any relatives or other
people living in the same house. An application can be made for a non-molestation
order without the abuser knowing, but the abuser has to have seen the
order before it can be enforced.
Occupation orders
An occupation order (used to be called ouster order) can be applied for
along with the non-molestation injunction order. This order can force
the abuser to live somewhere else. The abuser has to know about the application
for this order, though in very serious situations it is possible for
these Orders to be made without notice to the perpetrator. If the order is granted then the court can also make extra
orders in respect of the rent, mortgage or other bills. For example the
abuser can be made to pay the mortgage even though he isn’t living
in the house. Occupation orders can be up to six months, but can be extended if
there is evidence that the abuser will re-offend once the order has ended.
Does the man have to attend court?
The man is invited to go, but does not have to go to court for a non-molestation
injunction order to be granted. He only has to be aware of the order for
it to be enforced. He would have to attend court for an occupation order
to be granted. If he doesn’t turn up the woman can ask the court to
make an Order in his absence.
Will he get a criminal record?
The man will not get a criminal record as the injunctions are passed through
the civil court, that is unless a breach order occurs.
What happens if the man ignores the instructions of the injunction?
The above injunctions are usually accompanied by a power of arrest order
which gives the police power to arrest the abuser if the woman reports
that he is doing any of the things on the order which have a power of
arrest attached to them. If a woman reports that the man has breached
the court order
and the police get involved the man will be held in custody and presented
to the court within 24 hours. The court decides whether the man gets a
custodial sentence (put in prison), a fine or if the injunction is strengthened.
If there is no power of arrest attached to the injunction then the woman
has to go back to her solicitor and ask the court to decide what action
to take. If the court is satisfied that the order has been breached his
actions are considered to be a contempt of court which is punishable by
imprisonment, fine or both..
Do I need physical evidence of domestic violence?
You can get a non-molestation injunction order on the basis of purely
emotional abuse. You would probably need some evidence from someone such
as a doctor or counsellor. Medical/police evidence is not essential but strengthens
the case. A Statement will be prepared before the hearing, by a solicitor.
If this evidence is seen to be complete you will not have to give any
spoken evidence in court.
What happens in court?
If the woman applies for one of the above injunctions she has to attend
court. There will be no jury and the solicitor or another advocate can
speak on the woman’s behalf. The public are not allowed in court as
these are family proceedings.
What about the children?
Injunction orders protect the children as well as the woman. If the man
snatches the children she can go to her solicitor for a S8 Children’s
Act Order. The police will not respond to child snatching. Applications
for this type of order are seen as crisis remedies and will be dealt with
immediately.
Would I have to speak to the Children and Family Court Advisory and Support Service
(CAFCASS) Officer with the father
present?
It is usual for a CAFCASS officer to be involved with Children Act cases. They will
need to interview the parents about the child’s welfare. They should
not insist on a joint interview. More information on the
CAFCASS website.
What are S8 orders?
There are three main types of order. Residence orders settle the arrangements
of who the child lives with. Prohibited Steps orders prevent someone from
taking various steps in relation to a child, e.g. snatching them. Contact
Orders, who children see, where and when.
What does it mean if the father gets parental responsibility?
Married fathers automatically get parental responsibility and unmarried
ones can apply for it. Parental responsibility means that the father has
all the rights, duties and responsibilities of any parent in relation
to the child - e.g. he can make decisions about the child’s school,
religion and medical care. It does not determine who the child lives with
and doesn’t mean the father can abduct the child.
Will the father be granted contact with the child?
Since the 1989 Children Act it is now considered in the child’s best
interests to know both parents regardless of their conduct which makes
it difficult, but not impossible, to oppose an application for contact
by the father.
What about the mother’s safety when handing the child over for
contact?
Contact centres can be used where a child can have supervised contact
with their father.
Children and Young People's Services Involvement (formerly social services)
Children and Young People's Services become involved if there are child protection issues. If there are concerns about the child’s safety Children and Young People's services could monitor the child’s welfare regularly by developing a child protection plan. Case conferences would also be held regularly to discuss the issues affecting the child.
If Children and Young People's Services get involved do I need a solicitor?
It is useful for the woman to get a solicitor in such circumstances in
case anyone claims that she has failed to protect her own children.
Will the children be put into care?
If Children and Young People's Services decide that a child is not being cared for properly,
is at great risk or is being neglected they will begin care proceedings
and seek a Care Order from the court. The children will only be taken
into the care of the local authority if the order is granted. Sometimes
Children and Young People's Services issue supervision proceedings that give the local authority
power to supervise a child’s upbringing and monitor their wellbeing.
In some cases the court will make a Family Assistance Order which gives
the local authority or probation the power to assist a family in dealing
with difficult issues. Family Assistance Orders require the consent of
both parents.
What are Section 37 and Section 47 reports?
These reports are written and submitted to the court when there has been
suspected child abuse.
What will happen in court?
All hearings relating to Children Act proceedings are held In Chambers
which means they are private hearings with no jury, no public and no press.
Witnesses wait outside the courtroom until they are needed and friends
and family who are there to support the woman will not be allowed in the
courtroom unless they are witnesses.
Other options
It is possible to have a divorce without attending court if both parties agree to the divorce. If both parties don’t agree to the divorce then a hearing is required but domestic violence need not be mentioned in order to fulfil the ground of irretrievable breakdown. If there are children involved it is most common for the parent having the day-to-day responsibility for the care of the child to be allowed to stay in the former matrimonial home provided that they can afford to pay the rent/mortgage. Straightforward divorce takes 5 to 6 months. This can be lengthened by decisions over who will occupy the matrimonial home.
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