Sometimes it will be necessary for people to seek protection from those they have close connections to in their family or where they are in a relationship or marriage, particularly if they are going through a separation or relationship breakdown with that person.
Such steps can seem daunting, especially when the circumstances leading to them can be very stressful and frightening for those involved. We understand this and provide some initial information on this page which may help those dealing with such issues.
What are injunctions and non-molestation orders?
Injunctions are the umbrella term commonly applied to non-molestation orders and occupation orders.
Non-molestation orders require someone not to do certain things including, causing physically harming, harassing, pestering, or intimidating a victim. They are also prohibited from making threats as well.
Non-molestation orders can be very specific about what someone cannot do to someone else. This can include preventing someone from:
- contacting the other party by phone or text.
- from coming close to their place of residence.
- getting a 3rd party to harass the other party on their behalf.
- posting about them on social media.
Occupation orders are orders which can define who lives in the family home and who is excluded from it. These are very powerful orders which can grant someone the right to live in the family home even if it is not owned by them. The order can also exclude the other party from coming within a certain distance of the family home and can require them to pay the mortgage for the benefit of the person living there.
What happens if injunctions are breached?
Breach of a non-molestation order is a criminal offence and any breach which is found to have happened by the court could result in the person in breach being fined or sent to prison. It would also lead to a criminal record.
An automatic power of arrest is attached to non-molestation orders which grants the Police the right to arrest someone accused of a breach. The breach can then be considered by the criminal court.
The family court can also punish someone for breaching a non-molestation order, most likely if the criminal court and Police choose not to do so.
Occupation orders do not carry an automatic power of arrest but breach of an order can still lead to the court given the person in breach a fine or prison sentence.
Will I be protected forever?
Injunctions are viewed by the court as temporary steps to help situations calm down and for distance to be created between the parties concerned. Thus, they will not usually be made for any longer than 12 months.
It is possible for an injunction to be extended if the behaviour by the other party is continuing or is likely to do so.
Will I have to go to Court to get an injunction?
Yes, to get a non-molestation order or an occupation order, you will need to apply to Court. Such an application can be made without notice (known as an ex parte application) being given to the other party if you are in immediate danger and the court may grant you an injunction before they have heard from the other party.
It should be noted that if an ex parte injunction is ordered, then the court will list a further hearing shortly after the order is made and invite the other party to attend court so they can hear from them. This is often referred to as the return hearing and is something to be aware of before applying for an ex parte injunction.
Often it is advisable to write to the other party to ask if they will agree to stop doing the things, they are accused of doing or threatening to do. This will often work and stop the behaviour concerned without the need to go to court avoiding most of the legal costs and the stress associated with that process. That said, sometimes court is unavoidable, and protection is needed urgently.
Will I get an injunction?
This depends on several different factors and there is no guarantee that you will be granted an injunction if you apply. The court will need to be satisfied that you or your children are at imminent risk of being harmed physically or psychologically because of the other party’s behaviour or threats. If so, a non-molestation order is likely to be granted to you.
Occupation orders are more unpredictable since the court will need to be satisfied that excluding the other party from the family home is an appropriate and necessary safeguarding step to take. They will also need to be satisfied that the other party has somewhere else to go or can afford to pay for alternative accommodation.
Additionally, when injunctions are sought from the court, promises (known as undertakings) are offered by the accused instead of the injunctions. These are solemn promises by someone to the court which, if breached, can lead to the person in breach being found in contempt of court. This is a criminal offence and can be punishable by a fine or potentially imprisonment.
The downside to undertakings compared with non-molestation orders is that there is no automatic power of arrest. They do, however, carry a lot of weight and are enforceable through the court in the same way if breached. They can also help to conclude cases at an earlier stage if an injunction application is contested and allegations denied.
Who pays the legal costs for injunction applications?
The starting point is that each party will be responsible for paying their own legal costs in such applications. If the person applying for an injunction is successful in securing an order, then the other party may be made to pay some, or all, of their legal costs. That said, if a compromise is reached and undertakings are accepted instead, then it is unlikely costs will be awarded to the person applying.
If you would like to speak to one of our specialist family solicitors about an injunction or if you have any questions, please call us on 020 7467 3980 or contact us here to arrange your initial consultation.