If you are suffering from abuse you
could try to gain some protection from your abuser by applying
for a civil injunction or protection order.
What is an Injunction
An injunction is a court order that
requires someone to do or not to do something. There are two
main types of injunctions available under Part IV of the Family
Law Act 1996:
A non-molestation order
An occupation order
A non-molestation order is aimed at
preventing your partner or ex-partner from using or threatening
violence against you or your child, or intimidating, harassing
or pestering you, in order to ensure the health, safety and
well-being of yourself and your children.
An occupation order regulates who can
live in the family home, and can also restrict your abuser from
entering the surrounding area. If you do not feel safe
continuing to live with your partner, or if you have left home
because of violence, but want to return and exclude your abuser,
you may want to apply for an occupation order.
Under new legislation, a breach of a
non-molestation order is now a criminal offence; however, you
should still be able to take your abuser back to the civil court
for breaking the order, if you prefer this. If you already have
an injunction, you may have a power of arrest attached, and you
can also have powers of arrest attached to an occupation order.
These powers come into effect if your abuser breaks the order
(see below, Powers of arrest.)
While getting a court order may provide
some protection, it isn’t always helpful: sometimes it makes
very little difference, and it can even (in some cases) be
Who is eligible to apply
for an injunction?
In order for you to apply for one of
these orders you must be an ‘associated person’. This means you
and your partner or ex-partner must be related or associated
with each other in one of the following ways:
You are or have been married to
You are or have been in a civil
partnership with each other;
You are cohabitants or former
cohabitants (including same sex couples)
You live or have lived in the same
You are relatives.
You have formally agreed to marry
each other (even if that agreement has now ended).
You have a child together (this can
include those who are parents of the same child, and those
who have parental responsibility for the same child).
Although not living together, you
are in an “intimate relationship of significant duration”.
You are both involved in the same
family proceedings (e.g. divorce or child contact).
Recent legislation (the Domestic
Violence Crime and Victims Act, 2004) will amend the Family Law
Act so that cohabiting same sex couples will be able to apply
for occupation orders, and they, as well as couples who do not
live together or have children together, will also be able to
apply for non-molestation orders.
If you are not eligible to apply for an
order under the Family Law Act, or if you are being continually
harassed, threatened, pestered or stalked after a relationship
has ended, you can also get civil injunctions under the
Protection from Harassment Act 1997. Recent legislation also
allows a restraining order to be attached when criminal
proceedings have been taken – even if the conviction has not
been upheld – if the court believes you are likely to be at
risk. Restraining orders can provide the same protection as
injunctions under the civil law but may be more effective as
they carry stronger penalties.
Action under the criminal law, coupled
with restraining orders, may help you avoid the cost of taking
civil legal action if you do not also need to apply for an
injunction to exclude your abuser from your home.
If you are applying for an occupation
order you either have to have a legal right to occupy the home
(as joint or sole tenant or owner of that home), or you have to
be or have been married to, or cohabitating with, an
opposite-sex partner who is the owner or tenant. The court will
apply a ‘balance of harm’ test when deciding whether to make the
order. When making an occupation order, the court may make other
related orders imposing obligations on you or your abuser (for
example, relating to repair and maintenance of the home, or to
payment of rent or mortgage).
Injunctions are normally for a specified
period of time (e.g. six months) but can be renewed; or they may
be made ‘until further order’. There is no limit on the length
of time that non-molestation orders can be extended. Occupation
orders can only be extended beyond 12 months if you have a legal
right to stay in the home (i.e. as owner or co-owner, or
tenant/joint tenant, or because you are or have been married to
Getting legal advice
Although you can apply for an injunction
yourself, you might find it helpful to have legal advice. It is
best to get a solicitor who has a lot of experience with
domestic violence cases, and who is likely to understand all the
issues. Most of the solicitors listed on our panel have a wealth
of experience in this area and would be happy to help.
You may be eligible for public funding
(Community Legal Services funding, or legal aid) to pay your
legal costs if you are claiming welfare benefits, or are on a
low income and have little or no savings. (Your partner’s or
husband’s income is not taken into account if you are taking
legal action against him).
Please note Legal Aid is now very
limited for more information
Going to court
Applications for injunctions under the
Family Law Act are held at the Magistrates’ Family Proceedings
Court or the County Court, or in some cases the High Court. The
application will be in a closed court (‘in chambers’) and no one
who is not directly concerned with your case will be allowed in.
This means that you will be able to take in your solicitor or
legal representative, but will not
normally be allowed to take in a friend or other supporter
(though they can stay in the waiting room). The good thing about
this is that no members of the public will be there (unlike at a
criminal court) and this provides a degree of privacy.
If you are concerned that your abuser
might hassle you while you are waiting, you should tell your
solicitor who can ask the court officers to keep him away from
you. They should also be able to provide separate waiting areas.
You can ask for your address to be kept
secret and not read out in court, so that the abuser does not
know where you are staying.
How long does it take to
get an injunction?
If you are in immediate danger, an
application can be made to the court on the same day without
your abuser being there. This is called a ‘without notice’ or ex
parte application. The court will need to consider whether or
not you are at risk of significant harm, whether you will be
prevented or deterred from applying if you have to wait or
whether your abuser is avoiding being served notice to appear
before the court.
If the court grants a ‘without notice’
order, you will have to return to court for a full hearing once
your abuser has been served with notice.
If there are other family proceedings
already in progress (for example, for a residence or contact
order for a child) the court may wish to hear the whole case
together – but they can still grant an emergency order while you
are waiting for the full hearing.
What evidence will be
You will need to make a sworn statement
(sometimes called an affidavit) to the court about the physical
and emotional abuse you have experienced. You should be as
precise as possible about all the ways you have been physically
and emotionally harmed, the dates and times (if you have them)
and the effects on you and your children. It is important that
you or your solicitor provides the court with as much evidence
as possible of all aspects of harm caused by your partner or
ex-partner’s abusive behaviour. It will help if you have kept a
record of past events, or if you have independent evidence, such
as police reports or medical records.
The court has discretion when deciding
to make an order, and has to look at all the circumstances,
including the likely effect of any order on the health, safety
and well-being of you and your partner or ex-partner, your
conduct in relation to each other, your needs, and your
financial and housing resources.
The court sometimes suggests that,
instead of an injunction, the abuser should make an undertaking
(a promise) to the court not to harass or threaten you. While
this is supposed to have the same strength as a court order, and
breach of an undertaking constitutes contempt of court, in
practice, undertakings cannot be enforced effectively, as powers
of arrest cannot be attached. The court should never accept an
undertaking where violence has been used or threatened, and you
do not have to agree to accept an undertaking if you do not want
If you are applying for an occupation
order and do not have a legal entitlement to occupy the
property, the court must apply a ‘balance of harm’ test (that
is, a test to determine who will suffer the most harm if an
order is not made).
Once an order has been made, you should
have a copy, and your soliciter should arrange for a printed
copy to be handed personally to your abuser. The injunction will
not be effective if there is no proof that your abuser received
Power of arrest
If your abuser has used or threatened
physical violence, and the court accepts this at a full hearing
of the case, then it must attach a power of arrest to an
injunction (unless it believes you will be adequately protected
without this). This means that a copy of the order must be held
on record at the police station (you or your solicitor should
ensure that this happens), and the police can arrest immediately
if the order is broken, even without a specific criminal offence
having been committed. A power of arrest may be attached even if
the hearing was held ‘without notice’ if the court believes you
are likely to be at risk of harm otherwise.
Under new legislation, breach of a
non-molestation order will automatically become a criminal
offence. Occupation orders will be treated differently, however,
and a separate ‘power of arrest’ will still be needed.
What happens if the abuser
breaks the order?
If your abuser breaks the terms of the
injunction, and you are at all fearful for your safety or that
of others, you should call the police. If he has breached a
non-molestation order made after 1st July 2007, or if there is a
power of arrest attached, the police should arrest the abuser
(see above), and are required to bring him back before the court
within 24 hours. If there is no power of arrest, then you (with
the help of your solicitor if you have one) may have to go back
to court yourself and apply for an arrest warrant. Your abuser
is in contempt of court for disobeying a court order. The court
may then fine your abuser, impose a suspended sentence, or
commit to prison (rare for a first offence). The court is also
likely to add a power of arrest to the injunction in order to
strengthen it in future.
Under the Domestic Violence Crime and
Victims Act, 2004, breach of a non-molestation injunction will
become a criminal offence. This means that once this provision
comes into effect, the police should treat any breach of such an
order just like any other criminal offence; so if they arrest
your abuser, he will be taken to the Magistrates’ Court, and not
back to the County Court or Family Proceedings Court. This
should strengthen the power of court orders. (See also the
section on Police and the criminal prosecution process).
If, however, you are unhappy about the
enforcement process being taken out of your hands, it should
still be possible for you to take your abuser back to the County
Court or Family Proceedings Court for contempt of court – in the
same way as you have to do for the breach of an occupation
For further help and advice on
injunctions please telephone 0800 915