Domestic Violence & Harassment

The legal framework

The bulk of the current law to protect against domestic violence and harassment is found in Part IV of the Family Law Act 1996 (FLA). The FLA will be suitable to help in the majority of domestic violence or harassment situations that arise within families.

In some cases, it may also be necessary to look to the Protection from Harassment Act 1997 (PHA). The PHA provides different responses to harassment situations, including the power to compensate harassment by awarding damages.

The terminology

Domestic violence is a term used in cases brought under the FLA. It is not strictly defined. Domestic violence may include any incident of threatening behaviour, violence or abuse. Abuse may be psychological, physical, sexual, financial or emotional. Abuse may be directed against another adult or a child. A child will suffer from abuse indirectly if he or she witnesses it or hears it or experiences the aftermath of it. There is no typical victim of, or perpetrator of, domestic violence: domestic violence affects people regardless of gender, background or sexuality.

Molestation is an expression used in the FLA. Molestation is not strictly defined. Court decisions about domestic violence say that molest may be considered synonymous with pester. It may mean, to cause trouble; to vex; to annoy; to put to inconvenience. It includes behaviour which does not amount to violent conduct. It applies to any conduct which can properly be regarded as constituting a degree of harassment so as to require an intervention. Repeated telephoning may amount to molestation.

Harassment is an expression used in the PHA. It is defined as behaviour that alarms a person or causes them distress. It includes speech. Under the PHA, harassment must be a course of conduct, meaning it must involve conduct on at least two occasions.

Applicant is a term used frequently in court proceedings for the person who has made an application to the court asking for an order.

Respondent is a term used frequently in court proceedings for the person against whom an application for an order has been made.

An occupation order is a type of order a court can make under the FLA. An occupation order regulates who is entitled to live in a property.

A non-molestation order is a type of order a court can make under the FLA. A non-molestation order forbids a person from behaving in a particular way towards another.

Associated persons is an expression defined under the FLA. An occupation order and a non-molestation order may only be made under the FLA in cases between associated persons. People are considered associated if:

  • they are or were married or in a civil partnership or cohabitants;
  • they have agreed to marry or enter into a civil partnership;
  • they are living, or have lived, in the same home (but the relationship must go beyond one of them being the other’s employee, tenant, lodger or boarder);
  • they are relatives;
  • they have had an intimate relationship of significant duration;
  • they have a child together, or
  • they are both involved in other family proceedings.

Dwelling-house is an expression defined under the FLA. The court may make an occupation order in relation to a dwelling house, which includes any building or part of it, any caravan house-boat or other structure occupied as a home.

Relevant child is an expression defined under the FLA. The court is required, when deciding whether to make either an occupation order or a non-molestation order, to consider the needs of any relevant child. A relevant child is one:

  • who lives (or who might reasonably be expected to live) with either party;
  • whose interests the court is considering in related proceedings, or
  • any other child whose interests the court thinks are appropriate to take into account.

Occupation orders

The court may only make an occupation order in a case between associated persons. So, a tenant could not seek an occupation order against his landlord under the FLA. Also, an occupation order may only be made in relation to a home that the associated persons lived in (or intended to live in).

An occupation order may:

  • exclude a party from the home (and the vicinity of the home) altogether;
  • terminate or restrict the right of one party to live in the home;
  • regulate how the home is used, setting out who is entitled to use which parts of it and when.

The precise type of occupation order made will depend on the circumstances of the case. For example, it is more appropriate to regulate how two people are to continue to use a home if the property is spacious and has multiple bedrooms, bathrooms and living areas.

A court can, when making an occupation order, also make orders to resolve related matters. These orders might include:

  • who is responsible to repair and maintain the home;
  • who should pay rent, mortgage instalments and other outgoings on the home;
  • who is entitled to use the furniture or other contents of the home;
  • who is responsible for keeping the home, and any furniture or contents in it, secure.

Non-molestation orders

The court may only make a non-molestation order in a case between associated persons, or if the order is needed to benefit any relevant child.

A non-molestation order may be expressed to refer to molestation generally, as well as to particular defined acts. In practice, most non-molestation orders include both. The terms of the order must be precise and capable of being understood.

A non-molestation order may be made to last for a specified period, or to run generally until another order is made. As with occupation orders, in practice most Judges like to review non-molestation orders regularly, usually every six to twelve months.

A non-molestation order will be tailored to the circumstances of the particular case and the behaviour that must be regulated. Some provisions we see frequently include orders forbidding a respondent from:

  • using or threatening violence against the applicant;
  • using or threatening violence against a related child;
  • coming within a specified distance of the applicant;
  • coming within a specified distance of the applicant’s home and / or place of work;
  • coming within a specified distance of a related child’s school;
  • communicating with the applicant by any means (letter, SMS, telephone, e-mail), except through solicitors, and
  • threatening the applicant.

The procedure

The procedure for obtaining either a non-molestation order or an occupation order is identical. The same form is used. The application must be supported by a witness statement.

The application is filed with the County Court (so long as it has a family hearing centre) or Family Proceedings Court closest to where the applicant lives or works. There is a filing fee on the application.

The general rule in court proceedings is that fairness requires both parties to have an opportunity to present their case to a Judge before an order is made. However, courts recognise that domestic violence cases may need to be handled differently to protect the individuals and children involved. In appropriate cases, it will consider an application without notice to the respondent.

Save in without notice cases, the court will usually hear evidence from both parties and any witnesses, before concluding what has occurred and the steps necessary to protect against domestic violence. To conclude that something has occurred, the court has to be satisfied that it is more likely than not: this is referred to as the standard of proof. This standard of proof is sometimes described as being on the balance of probabilities.

In some cases, it may be possible to resolve matters without the need for a full hearing through the use of undertakings. An undertaking is a solemn promise by a person to the court to do (or not to do) something. If that promise is not kept, it is treated as a breach of a court order. A person who breaks their undertaking may be dealt with for contempt of court. Contempt of court may be punishable by a fine, a period of imprisonment or the seizing of assets (or any combination of these). It is for the court to decide whether the circumstances of a case are appropriate for it to accept an undertaking rather than conduct a full hearing. The court must be satisfied that the undertaking is sufficient protection for the applicant or any relevant child.

Protection from harassment

Most family situations will be capable of being managed using occupation and / or non-molestation orders made under the FLA. The PHA may be suitable, however, if a person does not come within the definition of an associated person under the FLA.

The PHA creates the tort of harassment. A tort is the infringement of a person’s rights by another.

The PHA entitles a court to make orders preventing a respondent from harassing an applicant. The PHA also entitles a court to award damages for the harassment. The damages may compensate the applicant for, amongst other things, anxiety caused by the harassment and any financial loss resulting from it. In one reported decision, a court awarded an applicant £35,000 damages against her former mother-in-law.

An application under the PHA is made in the County Court. There is a filing fee on the application.

How can we help?

  • Advise generally about whether the FLA and / or the PHA is relevant to your situation;
  • Help establish whether you and your partner are associated persons for the purposes of the FLA;
  • Advise about whether an occupation and / or a non-molestation order is appropriate in your case;
  • Help you decide whether your case is one that the court might be prepared to deal with without notice;
  • Represent you in making or opposing an application under the FLA and / or the PHA;
  • Identify in suitable cases whether and how it might be possible to resolve matters through the use of undertakings;
  • Deal with matters of enforcement, whether through court proceedings or by reporting breaches of a non-molestation order to the police.

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