Northern Family Law Support
Domestic Abuse
For a fraction of the price charged by solicitors, we can support you in obtaining a Non Molestation Order or Occupation Order through the Family Courts to protect you and any relevant children from Domestic Abuse.
We can also support you if you have received an application for either of these orders to be made against you.
We can help you prepare applications, witness statements, and attend court with you as your McKenzie Friend.
We cover the North East of England, including Tyne and Wear, County Durham, Teesside, Chester le Street, Washington, Consett, Stanley, Newcastle, Gateshead, Sunderland, Durham and Middlesbrough.
We offer a free initial 30 minute consultation.
What is Domestic Abuse?
Domestic Abuse is a criminal offence. The police recorded 910,980 incidents of Domestic Abuse in the 12 months to March 2022 but only 40,650 convictions were obtained in the criminal courts over the same period. Less than 5% of incidents reported result in a court conviction. The reasons for this are that most people report Domestic Abuse because they want protection from the alleged perpetrator , not a conviction for the perpetrator. Sometimes victims withdraw allegations because of this. In addition, the burden of proof to secure a criminal conviction is beyond all reasonable doubt. Too often it is one person’s word against another meaning it can be hard to establish guilt beyond all reasonable doubt.
The Domestic Abuse Act 2021 defines Domestic Abuse as abusive if is consists of any of the following:
- Physical or sexual abuse.
- Violent or threatening behaviour.
- Controlling or coercive behaviour.
- Economic abuse.
- Psychological, emotional, or other abuse.
“Economic abuse” means any behaviour that has a substantial adverse effect on a person’s ability to acquire, use or maintain money or other property, or obtain goods or services.
It does not matter whether the behaviour consists of a single incident or a course of conduct.
Domestic Abuse can only occur between people who are personally connected and where both the perpetrator and victim are over 16. People are “connected” if any of the following apply:
- They are, or have been, married to each other
- They are, or have been, civil partners of each other
- They have agreed to marry one another (whether or not the agreement has been terminated)
- They have entered into a civil partnership agreement (whether or not the agreement has been terminated)
- They are, or have been, in an intimate personal relationship with each other
- They each have, or there has been a time when they each have had, a parental relationship in relation to the same child
- They are relatives
The Domestic Abuse Act 2021 specifically provides that a child (under 18 years old) who sees, hears, or experiences the effects of domestic abuse and is related to the victim or the perpetrator is also to be regarded as a victim.
Protection against Domestic Abuse in the Family Court
The Family Court is a civil court , not a criminal court. This means that the burden of proof is much lower than in the criminal court. In the Family Court the burden of proof is “balance of probabilities.” This means that a Judge will make an order in favour of the party for whom he is 51% convinced, and rule against the party for who he is 49% convinced.
This means that it is much easier, given the same evidence provided to both a Family Court and a Criminal Court, to obtain protection through an order made in the Family Court.
The most common orders made in the Family Court relating to Domestic Abuse are Non Molestation Orders and Occupation Orders.
These Orders are civil orders, but any breach of an Order can carry the power for the police to arrest, with the possibility of a fine or a prison sentence for the person breaching the order. It is the threat of arrest and subsequent criminal proceedings that often acts as a deterrent and offers protection to the victim of Domestic Abuse.
With the burden of proof being much lower, it is perhaps surprising that in 2022 the Family Courts in England and Wales received only 30,952 applications for Non Molestation Orders and 5,907 applications for Occupation Orders. This means that a lot of people who do not get the protection sought by reporting Domestic Abuse to the police are failing to attempt to seek protection though the Family Court.
You are much more likely to get protection in the form of an Order from the Family Court than you are to get protection through a conviction in the Criminal Courts. For example, in the Family Court, 60% of applications for an Occupation Order result in an Occupation Order being made.
We can assist you in making an application or responding to an application made against you for a Non Molestation Order or an Occupation Order. We can help with paperwork, help you prepare your witness statements, help with the application, and support you in court as a McKenzie Friend. We can support you if you live in the North East of England, including Chester le Street, Washington, Consett, Stanley, Newcastle, Gateshead, Sunderland, Durham and Teesside.
Non Molestation Orders
What is a Non Molestation Order?
We can assist you in making an application or responding to an application made against you for a Non Molestation Order. We can help with paperwork, help you prepare your witness statements, help with the application, and support you in court as a McKenzie Friend.
The Family Law Act 1996 contains the relevant legislation applicable when a Family Court is asked to consider an application made for a Non Molestation Order.
A Non Molestation Order can prohibit a person ( “the Respondent”) from molesting another person who is “associated” with the Respondent; and prohibit the Respondent from molesting a relevant child. Typically, the wording used in the Order is designed to prevent the Respondent from intimidating or harassing the person making the application.
Only people who are “associated” with the Respondent can make an application for a Non Molestation Order. Section 63 of the Family Law Act 1996 defines what it means to be associated.
A person is associated with another person if any of the following apply:
- They are or have been married to each other.
- They are or have been civil partners of each other.
- They are cohabitants or former cohabitants.
- They live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger, or boarder.
- They are relatives.
- They have agreed to marry one another (whether or not that agreement has been terminated)
- They have or have had an intimate personal relationship with each other which is or was of significant duration.
- They have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated).
In deciding whether to exercise its powers to make an Order, and if so, in what manner, the court looks at all the circumstances including the need to secure the health, safety and well-being of the Applicant and any “relevant child.”
A “relevant child” is:
(a)any child who is living with or might reasonably be expected to live with either party to the proceedings.
OR (b)any child in relation to whom an order under the Adoption Act 1976 [ the Adoption and Children Act 2002] or the Children Act 1989 is in question in the proceedings; and any other child whose interests the court considers relevant.
A person who without reasonable excuse does anything that he is prohibited from doing by a Non Molestation Order is guilty of an offence.
A person guilty of the offence of breaching a Non Molestation Order is liable to:
a)on conviction or indictment, to imprisonment for a term not exceeding five years, or a fine, or both.
OR b)on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, or a fine not exceeding the statutory maximum, or both.
Obtaining a Non Molestation Order
We can assist you in making an application or responding to an application made against you for a Non Molestation Order. We can help with paperwork, help you prepare your witness statements, help with the application, and support you in court as a McKenzie Friend.
The process of obtaining a Non Molestation Order begins with the Applicant completing an FL401 Non Molestation Application and submitting this, together with a witness statement to the court. There is no court fee for this application.
The application can be made on notice to the Respondent or ex parte (without notice to the Respondent).
Court will consider making a Non Molestation Order at a hearing without the Respondent being present in certain circumstances. This is known as an ex parte order.
An ex parte order is usually only made where there is any risk of significant harm to the Applicant or a relevant child, attributable to the conduct of the Respondent, if the order is not made immediately. It can also be made ex parte if the court believes it is likely that the Applicant will be deterred or prevented from pursuing the application if an order is not made immediately. It can also be made ex parte if there is reason to believe that the Respondent is aware of the proceedings but is deliberately evading service and that the Applicant or a relevant child will be seriously prejudiced by the delay.
If an ex parte order is made, the court must list the matter for a full hearing as soon as is reasonably possible to give the Respondent the opportunity to defend themselves against the allegations made.
At this full hearing, the Applicant and Respondent submit witness statements. Sometimes the court will invite the Applicant and Respondent to bring other witnesses but usually only if they have personally witnessed incidents between the Applicant and Respondent. At this full hearing both the Applicant and Respondent will be cross examined and the Judge will decide based on balance of probabilities what decision to make.
There are three possible decisions that a Judge can make. The Judge may make a Non Molestation Order, the Judge may decline to make a Non Molestation Order but invite the Respondent to offer undertakings to the court, or the Judge may do neither.
On 21 July 2022, measures came into force barring victims of Domestic Abuse from being cross-examined by their alleged perpetrators in family and civil courts when the alleged perpetrator is acting as a litigant in person. Equally, a victim who is a litigant in person can seek permission from the court not to have to cross-examine the alleged perpetrator.
The ban will be applied only in cases where there is specified evidence of domestic abuse between those involved, or there is a conviction, caution, charge, or protective injunction in place between the parties.
The court may also give a direction banning a party to the proceedings from cross-examining a witness in person if none of the above apply if it appears to the Court that the quality condition (quality of evidence) or the significant distress condition is met, and it would be contrary to the interests of justice to allow such cross-examination.
In cases where the alleged perpetrator is a litigant in person and is not allowed to cross-examine the victim, cross-examination will be undertaken by a court-appointed legal professional. Equally if the victim is a litigant in person, cross examination of the perpetrator will also be undertaken by a court-appointed legal professional.
If you are the victim , you need to complete an EX740 Application for the court to consider whether to prevent (prohibit) questioning (cross-examination) in person by the alleged Perpetrator. There is no court fee for this Application.
If you are accused of abuse, you need to complete an EX741 application. There is no fee for this.
We can assist you in making these applications and drafting and providing court with the required information to support these applications.
Undertakings in Non Molestation Proceedings
In any case where the court has the power to make a Non Molestation Order, the court may accept an undertaking from any party to the proceedings. No power of arrest may be attached to any undertaking given.
The court won’t accept an undertaking instead of making a Non Molestation Order in any case where it appears to the court that the Respondent has used or threatened violence against the Applicant or a relevant child; and where, for the protection of the Applicant or child, it is necessary to make a Non Molestation Order so that any breach may be punishable with arrest and criminal proceedings.
If the court accepts an undertaking from the Respondent, this means that the Respondent is promising to the court not to do the things listed in the undertaking. If the Respondent breaches an undertaking this is known as contempt of court. The Respondent will not be arrested but can be brought back to court to face contempt of court proceedings which could result in a fine, imprisonment or both.
Occupation Orders
Section 33 of the Family Law Act 1996 contains the legislation a Family Court considers when an application is made for an Occupation Order in circumstances where the other party would otherwise have a legal right to live in the dwelling house. This might be because they are joint tenants or in circumstances where one person doesn’t own the house but has the right to occupy the house.
An Occupation Order may allow only the Applicant to remain in occupation, or require the Respondent to permit the Applicant to enter and remain in the house, or regulate the occupation of the dwelling house by either or both parties, for example by defining which parts of the house the Respondent can live in. It could also require the Respondent to leave the dwelling house or part of the dwelling house or exclude the Respondent from a defined area of the dwelling house.
In deciding whether to exercise its powers to make an Occupation Order, the court considers a number of factors. These are:
- The housing needs and housing resources of each of the parties and of any relevant child.
- The financial resources of each of the parties.
- The likely effect of any order, or of any decision by the court not to exercise its power, on the health, safety, or well-being of the parties and of any relevant child; and
- The conduct of the parties in relation to each other and otherwise.
If it appears to the court that the Applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the Respondent if an Occupation Order is not made, the court shall make the order unless it appears to it that:
- The Respondent or any relevant child is likely to suffer significant harm if the order is made; and
- The harm likely to be suffered by the Respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the Respondent which is likely to be suffered by the Applicant or child if the order is not made.
Breaking an Occupation Order is not automatically a criminal offence, but a power of arrest can be attached to one or more of the provisions of the Occupation Order. The court will attach a power of arrest if it appears to them that the Respondent has used violence or threatened to use violence towards the Applicant.
If a power of arrest is not attached to the order, the Applicant may have to apply to the court for a warrant of arrest.
Obtaining an Occupation Order
We can assist you in making an application or responding to an application made against you for an Occupation Order. We can help with paperwork, help you prepare your witness statements, help with the application, and support you in court as a McKenzie Friend.
The process of obtaining an Occupation Order begins with the Applicant completing an FL401 Occupation Application and submitting this, together with a witness statement to the court. There is no court fee for making this application.
The application can be made on notice to the Respondent or ex parte (without notice to the Respondent).
Court will consider making an Occupation Order at a hearing without the Respondent being present in certain circumstances. Section 45 of the Family Law Act contains the relevant legislation for ex parte orders being made.
An ex parte order is usually only made where there is any risk of significant harm to the Applicant or a relevant child, attributable to the conduct of the Respondent, if the order is not made immediately. It can also be made ex parte if the court believes it is likely that the Applicant will be deterred or prevented from pursuing the application if an order is not made immediately. It can also be made ex parte if there is reason to believe that the Respondent is aware of the proceedings but is deliberately evading service and that the Applicant or a relevant child will be seriously prejudiced by the delay.
If an ex parte order is made, the court must list for a full hearing as soon as is reasonably possible to give the Respondent the opportunity to defend themselves.
At this full hearing, the Applicant and Respondent submit witness statements. Sometimes the court will invite the Applicant and Respondent to bring in their own witnesses but only if these other people have personally witnessed incidents between the Applicant and Respondent. At this full hearing both the Applicant and Respondent will be cross examined by the other party and the Judge will decide based on balance of probabilities whether or not to make an Occupation Order.
On 21 July 2022, measures came into force barring victims of Domestic Abuse from being cross-examined by their alleged perpetrators in family and civil courts when the alleged perpetrator is acting as a litigant in person. Equally, a victim who is a litigant in person can seek permission from the court not to have to cross examine the alleged perpetrator.
The ban will be applied only in cases where there is specified evidence of domestic abuse between those involved, or there is a conviction, caution, charge, or protective injunction in place between the parties.
The court may also give a direction banning a party to the proceedings from cross-examining a witness in person if none of the above apply if it appears to the Court that the quality condition (quality of evidence) or the significant distress condition is met, and it would be contrary to the interests of justice to allow such cross-examination.
In cases where the alleged perpetrator is a litigant in person and is not allowed to cross-examine the victim, cross-examination will be undertaken by a court-appointed legal professional. Equally if the victim is a litigant in person, cross examination of the perpetrator will also be undertaken by a court-appointed legal professional.
If you are the victim , you need to complete an EX740 Application for the court to consider whether to prevent (prohibit) questioning (cross-examination) in person by the alleged Perpetrator. There is no court fee for this Application.
If you are accused of abuse, you need to complete an EX741 application. There is no fee for this.
We can assist you in making these applications and drafting and providing court with the required information to support these applications.
Undertakings in Occupation Order Proceedings
Section 46 of the Family Law Act 1996 contains the relevant legislation with respect to undertakings.
In any case where the court has power to make an Occupation Order, the court may accept an undertaking from any party to the proceedings. No power of arrest may be attached to any undertaking given.
The court will not accept an undertaking instead of making an Occupation Order if it feels that a power of arrest is required. The court will attach a power of arrest if it appears to them that the Respondent has used violence or threatened to use violence towards the Applicant.
If the court accepts an undertaking from the Respondent, this means that the Respondent is promising to the court not to do the things listed in the undertaking. If the Respondent breaches an undertaking this is known as contempt of court. The Respondent will not be arrested but can be brought back to court to face contempt of court proceedings which could result in a fine, imprisonment or both.
We can support you in court as a McKenzie Friend. We can sit alongside you, giving you advice, taking notes, and providing you with moral support.
Free initial 30 minute consultation
Where to find us:
Northern FLS Ltd,
11 Orchard Terrace,
Chester le Street,
DH3 3JU
Call Us:
+44 (0)7342 979477
Email Us:
help@northernfamilylawsupport.co.uk
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