A victim of domestic abuse may seek the protection of the court by applying for a domestic violence order, often referred to as an ‘injunction’.
There are two types of domestic violence orders: non-molestation orders and occupation orders.
A non-molestation order is fairly self-explanatory. It is an order prohibiting one party from molesting, threatening or otherwise harassing the other party, including by the use of coercive and controlling behaviour.
But what is an occupation order?
An occupation order is essentially an order that regulates who can occupy the parties’ home, although it can do much more than that.
The most common way in which an occupation order is used is to require one party to vacate the property, but it can also be used, for example, to require one party to allow the other party back into the property after they have previously been forced to leave.
An occupation order can even regulate which parts of the home each party may occupy, although this can obviously only happen where the property is large enough for the parties to live separately within it.
An occupation order can also exclude one party from an area around the home.
For more details of what an occupation order can do, and how the court decides whether to make an occupation order, see this recent post.
Clearly, an occupation order can be extremely useful when dealing with domestic abuse. Ensuring that a victim is safe in their own home is absolutely essential.
So it is important that anyone wishing to apply for an occupation order has the evidence that they require to obtain it. An occupation order is a serious order for a court to make, especially if it is ordering someone to leave their home. The court will only therefore make such an order if it has the evidence necessary to satisfy it that the order is required.
Obviously you will need to provide the court with evidence of the domestic abuse. The main way in which you will do this is by providing the court with a statement setting out details of the abuse, including the first, worst, and most recent incidents of abuse.
Sometimes the abuse does not consist of separate incidents but is rather a pattern of abuse, such as where there has been controlling behaviour by the abuser. In such a case you will need to explain the pattern of abuse.
You may also be able to provide the court with independent evidence of the abuse, for example from a friend or family member, although this is not always possible, where the abuse only takes place within the home.
Some other types of independent evidence are mentioned below, in connection with applying for legal aid.
The court will also want details of the home, including whether it is owned or rented and by whom, and who pays the mortgage or rent. The court will also want to know what your housing needs are, for example where you have children to look after.
In short, provide the court with as much relevant evidence as you can, to explain why you need the occupation order.
You may be able to obtain legal aid to cover the legal costs involved in applying for non-molestation and occupation orders.
To obtain legal aid you will need to provide the Legal Aid Agency with written evidence of the domestic abuse.
The evidence can come from one or more of various specified sources, such as: the court, where a previous domestic abuse order has been made, the court has made a finding of domestic abuse against the abuser or where the abuser has been convicted of a domestic violence offence; the police, where they have had dealings with the abuser such as arresting or cautioning them for a domestic violence offence; or a doctor, where they have examined you and found that you have suffered injuries consistent with being a victim of domestic violence.
We can provide you with full details of the types of evidence needed to obtain legal aid. To get in touch with us, click the link on this page.
If you are the victim of domestic abuse you should seek expert legal advice as soon as possible. We can provide you with that advice.
For more information about our domestic abuse services, and how to get in touch, see this page.
Domestic abuse can obviously be exacerbated by the fact that the parties are both still living in the same home. The law therefore enables the court to make an order regulating who may live in the family home. This is called an ‘occupation order’.
In most situations a victim of abuse can apply to the court for an occupation order, but just what can an occupation order do, and how will the court decide whether to make one?
Exactly what an occupation order can do will depend upon the circumstances of the case, such as whether the parties are married, and whether the home is owned or rented.
However, whatever the circumstances there are basically four things that an occupation order can do:
1. Require the other party to allow the applicant back into the property, or part of the property. Obviously, this can be used where the applicant has been forced to leave the property due to the other party’s abuse.
2. Regulate the occupation of the property by either or both of the parties, for example by stating which parts of the property each party may occupy, where the accommodation at the property is such as to allow the parties to live separately within it.
3. Require the respondent to leave the property, or part of the property. The order may specify that the respondent can return to the property for certain defined purposes, such as collecting and returning children for contact.
4. Exclude the respondent from a defined area around the property.
The order may also prohibit the other party from obstructing or interfering with the applicant’s occupation of the property.
In addition it may include provisions for such things as who should maintain the property, who should pay the mortgage/rent/other outgoings, who can keep and use the furniture, and so on.
Exceptionally, an occupation order can be made without giving notice to the other party. However, the court will fix a hearing date and the other party can oppose the continuation of the order at that hearing.
Lastly, the order will state how long it is to last. Exactly how long it can last will depend upon the circumstances of the case.
The specific factors that the court is required to take into account before deciding whether to make an occupation order will again depend upon the circumstances of the case.
However, in general the court will consider all of the circumstances of the case, and in particular:
1. The housing needs and resources of both of the parties and any children. Clearly, for example, a party looking after children will have greater housing needs than a party not looking after children.
2. The financial resources of both parties – one of the parties may, for example, be in a much better position financially to rehouse themselves.
3. The likely effect any order, or not making an order, will have on the parties and any children. If, for example, the other party has nowhere else to live, then obviously making an occupation order requiring them to leave the home and therefore making them homeless will be a far more serious matter. On the other hand, if the court considers that the victim and any children may suffer harm by the other party remaining in the property then it will be more likely to order the other party to leave.
4. The conduct of the parties in relation to each other. Obviously, the more serious the abuse by the other party, the more likely it is that the court will order them to leave the home.
If a parent has been found by the court to have seriously abused the other parent, or even their children, should the court then still be able to allow them to have contact with the children, or should the finding of abuse mean that there should be no contact?
It is a difficult question, and an MP, who herself has personal experience of court proceedings dealing with this situation, is proposing a change to the law.
The MP is Kate Kniveton. Before we look at what she is proposing, we need to look at the law as it is at present.
Judge Lieven established current law in final hearing of Ms. Kniveton’s case.
In the case, which concerned arrangements for Ms Kniveton’s child, the court had made some very serious findings of domestic abuse against the father, including that he had physically and verbally assaulted Ms Kniveton, and even that he had raped her.
Despite these findings, the court initially decided that the father should continue to have contact with the child, at a contact centre, and even that Ms Kniveton should pay half of the contact centre fees.
In her judgment Mrs Justice Lieven explained the law as it stands at present, which states that where there are findings of domestic abuse the court should only make an order for contact if it is satisfied that the safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
Mrs. Justice Lieven halted direct contact between child and father due to safety concerns for child and Ms. Kniveton.
In the light of her experiences Ms Kniveton, who feels that the present law came “dangerously close” to letting her down, is now calling upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children.
Whether such a presumption is introduced remains to be seen, but Justice Minister Mike Freer has confirmed that a review into the current presumption of parental involvement, which states that it is generally in a child’s best interests to have a relationship with both parents, will be published by “late spring or early summer”.
Should laws on contact between domestic abusers and children be strengthened, as Ms. Kniveton suggests, or kept the same?
Clearly, the safety of the child and the abused parent must be protected at all costs, as is the case with the law as it stands at present, and a presumption of no contact would fit in with this.
But on the other hand the welfare of the child is paramount, and there may well be cases where the child’s welfare dictates that they should continue to have contact with a parent, despite the fact that that parent has been found to be abusive. In such cases a presumption of no contact could work against the child’s welfare.
We will leave the last word to Ms Kniveton.
Speaking in the Commons she said: “Despite the court confirming that my child’s father was abusive, a rapist, it was decided that contact should continue through a contact centre and that I should pay for 50% of the cost of that contact.
“I couldn’t believe that anyone felt that my child, whom I’d been fighting to protect, would benefit from further contact with such an abusive and violent man, and that I, someone who had been subjected to that violent behaviour, should not only facilitate that contact, but also pay towards it.”
If you’re experiencing domestic abuse, seeking legal help promptly is crucial for your safety and well-being.
For more information about domestic abuse and how we can help, see this page.
The term “domestic abuse” only began to be commonly used in the context of family law relatively recently. Before that, we all used the term “domestic violence”.
As the name suggests, “domestic violence” essentially referred to acts or threats of violence by one partner against the other. But this was limiting. Abusive behaviour isn’t just violence; it manifests in various other forms beyond threats or physical harm between partners.
And so the term “domestic abuse” began to be used. But what exactly is domestic abuse?
Until the passing of the Domestic Abuse Act 2001 there was in fact no statutory definition of domestic abuse.
The Act remedied that omission and, in doing so, made it clear to all just what can constitute domestic abuse.
The definition begins simply. Domestic abuse involves abusive behaviour between two individuals aged 16 or older who are personally connected to each other.
But apart from making clear that the two people must be over 16 and “personally connected” (for example married, in an intimate personal relationship with each other, or relatives), this is not particularly helpful.
The definition therefore goes on to specify what kind of behaviour is “abusive”. It states that behaviour is “abusive” if it consists of any of the following:
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see below); or
(e) psychological, emotional or other abuse.
Further, the definition of domestic abuse doesn’t hinge on whether it’s a single incident or a pattern of behaviour.
The definition extends beyond mere violence or threats, as previously indicated. In particular, coercive and controlling behaviour, very often a feature of domestic abuse, is specifically included.
One type of controlling behaviour is economic abuse, which the Act goes on to define as any behaviour that has a substantial adverse effect on a person’s ability to acquire, use or maintain money or other property, or to obtain goods or services. This kind of behaviour is often used by one party to control the other.
And there is one other important point in the definition: behaviour may still be abusive towards the victim even if it is directed at someone other than the victim, for example the victim’s child.
Providing this definition of domestic abuse is one of the most important things that the Domestic Abuse Act 2021 did, but it did a number of other important things as well.
In the words of the Government, the Domestic Abuse Act 2021 set out to: “Raise awareness and understanding about the devastating impact of domestic abuse on victims and their families”, and to: “Further improve the effectiveness of the justice system in providing protection for victims of domestic abuse and bringing perpetrators to justice.”
The Act aimed to achieve its goals through various measures, including providing a statutory definition of domestic abuse, among others.
The first was the establishment of a Domestic Abuse Commissioner, “to provide public leadership on domestic abuse issues and play a key role in overseeing and monitoring the provision of domestic abuse services in England and Wales.”
The current Domestic Abuse Commissioner is Nicole Jacobs. An example of her actions was in the news recently when she warned the Government that domestic abuse services faced a “state of crisis” because of a lack of funding for councils and uncertainty over future resources.
The other measure was the introduction of a new civil Domestic Abuse Protection Notice (‘DAPN’) to provide immediate protection following a domestic abuse incident, and a new civil Domestic Abuse Protection Order (‘DAPO’) to provide longer-term protection for victims.
Police could issue a DAPN, mandating a perpetrator to leave the victim’s home, for instance, for up to 48 hours.
The police will also be able to apply to a court for a DAPO, as could a victim of abuse. The court can independently issue a DAPO during ongoing proceedings, not necessarily related to domestic abuse, at its discretion.
DAPOs can impose both prohibitions and positive requirements on perpetrators of abuse. These could include prohibiting the perpetrator from coming within a specified distance of the victim’s home and/or any other specified premises, such as the victim’s workplace, alongside requiring the perpetrator to attend a behaviour change programme, an alcohol or substance misuse programme or a mental health assessment.
Last year the Government announced that DAPNs and DAPOs would be piloted in Gwent, Greater Manchester, and three London boroughs (Croydon, Bromley and Sutton), with the Metropolitan Police, British Transport Police, and other criminal justice partners.
On the 4th of September the BBC aired a shocking documentary telling the story of mothers fleeing the UK with their children, claiming that the Family Courts were forcing their children into contact with their abusive fathers.
The documentary coincided with research published by the University of Manchester highlighting serious health problems suffered by mothers who accuse their partners of domestic abuse. The mothers claimed that their health problems were caused by biased family court proceedings.
The study, involving 45 mothers and their 77 children, found that dozens of the children had been forced into contact with abusive fathers, most of whom had spuriously claimed that the mothers had sought to alienate the children against them.
The BBC investigation also found that five mothers had died after being accused of parental alienation by abusive fathers, some taking their own lives, and one having a heart attack.
But is the Family Court really biased against mothers, in the way that it orders contact after preferring fathers’ claims of parental alienation over mothers’ claims of domestic abuse?
The first thing to say is that the Family Court does of course get things wrong from time to time. No system is perfect, and judges are fallible human beings who can make wrong judgement calls.
But the system is not complacent. It is always trying to improve. It has, for example, quite recently taken steps to improve how it deals with cases involving domestic abuse allegations, and new proposed guidance for courts is in the pipeline on how to respond to allegations of alienating behaviour (more of which in a moment).
And the research has to be taken in context. Whilst any mistake by the Family Court can obviously have extremely serious, and sometimes tragic, consequences, it must be remembered that every year the Family Courts in England and Wales deal with over 50,000 private law children cases between parents, involving some 80,000 children.
Family Court judges often have a very difficult task, but in the vast majority of those cases they do not make decisions that are obviously wrong, even if one of the parties may believe that to be so.
And the law that those judges have to apply contains no bias – it is written in terms that apply equally to both parents.
So why might the courts be accused of bias?
In a press release published by the University of Manchester lead researcher Dr Elizabeth Dalgarno says that the study’s findings can be explained by lack of training for judges and court professionals around coercive control and domestic abuse, and a culture of misogyny and woman and victim-blaming which is prevalent in society.
These points may have some validity, but the first is being address by improved training for judges, and the second, if true, is obviously a much wider problem that cannot be blamed upon the Family Courts.
The BBC says that researchers studying the Family Court say they are concerned about the increasing number of claims of parental alienation, which Dr Dalgarno describes as “a pseudoscientific belief system designed to control women and deny abuse”.
But the family justice system is already making it clear that parental alienation is not a syndrome capable of being diagnosed, but rather a process of manipulation of children perpetrated by one parent against the other, through what are termed as “alienating behaviours”. It is fundamentally a question of fact.
As the President of the Family Division has said: “the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
And as mentioned above, the Family Justice Council (‘FJC’), which monitors the family justice system, has drafted guidance to assist the Family Court on responding to allegations of alienating behaviour. The guidance, which is presently out for consultation, focuses on dealing with evidence and finding facts.
Of course, no improvements can guarantee that mistakes are no longer made, but the FJC expresses the hope that the guidance “will contribute to increased understanding, good practice, and ultimately good welfare outcomes for children.”
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information
Domestic abuse is a term that is commonly used but, as we will see, also commonly misunderstood.
The misconception is largely due to changes in our understanding of the scope of domestic abuse, as we have learned more about the nature of abuse in family relationships.
And even the terminology has changed, as that understanding has grown.
So, what is the definition of domestic abuse?
Until relatively recently the term domestic abuse was hardly used. Instead, we referred to domestic violence.
The term domestic violence is still in common usage, suggesting that the problem relates only to one party using or threatening physical violence against the other.
But while domestic abuse often involves one party using or threatening violence against the other, that is only part of the story.
Abuse can be far more subtle, and insidious, but no less destructive towards the lives of its victims.
So just what types of abuse are covered by the term domestic abuse?
Perhaps surprisingly, there was no official definition of domestic abuse until the passing of the Domestic Abuse Act 2021.
For the first time, the Act set out a statutory definition of domestic abuse. And it covers much more than just violence or threats of violence. We explored this guidance on domestic abuse at the time.
The definition begins by stating that behaviour of one person towards another is domestic abuse if the two people are aged 16 or over and are personally connected to each other, and the behaviour is abusive.
“Personally connected” includes those who are married, are civil partners, or are or have been in an intimate personal relationship with each other.
It should also be noted that behaviour may be behaviour towards another person even though it consists of conduct directed at someone else, such as the other person’s child.
Behaviour is “abusive” if it consists of any of the following:
It does not matter whether the behaviour consists of a single incident, or a course of conduct.
The meaning of physical or sexual abuse and violent or threatening behaviour will be readily understood, but the other types of abuse require a little more explanation.
Controlling or coercive behaviour can take many forms, but is generally used by the abuser as a means of making their victim submissive towards them. Examples of such behaviour range from constant belittlement to taking over aspects of the victim’s life, for example by restricting where they can go, such as preventing them from seeing friends and family.
Economic abuse is further defined by the Act to mean any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use, or maintain money or other property, or to obtain goods or services. It is, in effect, another type of controlling or coercive behaviour.
Lastly, psychological and emotional abuse covers such things as the abuser constantly placing their opinion as superior to that of the victim, or generally behaving in such a way as to make the victim feel that they are worthless.
It should also be noted that the definition is not comprehensive – it specifically also includes “other abuse”.
As will be seen, the definition of domestic abuse is quite wide, and some victims may not even realise that they are being abused, especially early in a relationship.
It is therefore important that the meaning of domestic abuse be properly understood, so that victims can take steps to protect themselves as soon as possible.
There are various ways that a victim of abuse can protect themselves, including applying to a court for a non-molestation order, or for an order regulating who can occupy the family home.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. Please contact the team to speak to our specialist domestic abuse solicitors.
On the 25th of May 2017 33-year-old hospital worker Emma Day went to collect her six-year-old daughter from school. Unbeknownst to her, the child’s father, Mark Morris, was waiting for her outside the gates of the school, armed with a kitchen knife.
A confrontation occurred, and Morris stabbed Ms Day multiple times, slashing her neck and puncturing her heart and lung. Ms Day died of her injuries.
And what had led to this awful scenario?
Simple: Nine days earlier Ms Day had applied to the Child Maintenance Service (‘CMS’) for child maintenance from Morris. Morris had repeatedly threatened to kill Ms Day if she did not cancel the claim, and on that tragic day he carried out his threat.
Sadly, the dangers that parents face when seeking child maintenance from abusive former partners are well known. It is therefore very welcome that the Department for Work and Pensions, which is responsible for the CMS, has announced new measures to protect parents in such a situation.
Before going through the new measures, we need to briefly explain the two services that the CMS offers: ‘Direct Pay’ and ‘Collect and Pay’.
Under ‘Direct Pay’ the CMS calculates the amount of maintenance that should be paid, and parents make their own arrangements for payments. Direct Pay can be chosen by either parent with the other’s agreement. A £20 application fee is charged for this service (unless waived because of a domestic abuse issue).
Neither parent pays collection fees under Direct Pay.
Under ‘Collect and Pay’ the CMS calculates the amount of maintenance, then collects the payment from the paying parent and pays it to the receiving parent. There are ongoing collection charges for use of this service, payable by both the paying parent (20% on top of the maintenance amount), and the receiving parent (4% taken out of the amount of maintenance). Collect & Pay is generally used in circumstances such as where the paying parent has failed to pay maintenance, or failed to keep to a Direct Pay arrangement, or where one parent does not want the other to know their personal details.
It has been found that the Direct Pay service has been used as a form of coercion and control by abusers. Half of new Direct Pay arrangements are either not sustained or are ineffective, and parents often fail to report non-payment to the CMS, to avoid causing an issue with the paying parent.
Under the new measures survivors of domestic abuse will be given the choice to allow the CMS to move the case into the Collect and Pay service, without the consent of the abusive ex-partner. This will not just prevent abusers from using child maintenance as a form of ongoing financial abuse and control – it will also mean that survivors will not have to have contact with their ex-partner if there is evidence of domestic abuse.
A Bill is currently going through parliament to amend legislation to refuse access to Direct Pay where one parent objects to it on the grounds of domestic abuse, and where evidence of domestic abuse can be provided.
Under other new measures the CMS will have new powers to report suspected cases of financial coercion to the Crown Prosecution Service to help bring abusers to justice, one-to-one support for survivors will be piloted, and domestic abuse training for CMS staff will be improved.
If you are the victim of abuse from a partner or former partner, there are steps you can take to obtain protection, including obtaining an injunction to stop them from molesting you and, if necessary, a court order requiring them to vacate, or stay away from, your home.
We can help you obtain these protections. For further information, please see our page on domestic abuse.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
