Domestic Abuse and Injunctions

 

What is domestic abuse?

Domestic abuse can consist of an incident or an ongoing pattern of incidents consisting of but not limited to:

• Coercive control (a pattern of intimidation, degradation, isolation and control with the use or threat of physical or sexual violence)

• Psychological and/or emotional abuse

• Physical or sexual abuse

• Financial or economic abuse

• Harassment and stalking

• Online or digital abuse

It is often an attempt by one person to dominate and control the other.  An abuser can use various methods such as shame, guilt, intimidation and fear. 

Abuse is often by a partner or previous partner but can be from other family members or a carer.  

Although women are more likely than men to experience domestic abuse, men are sometimes also victims of abuse, especially verbal and emotional.  

Any individual can experience abuse, regardless of their background (race, ethnic, religious group, sexuality, class or disability) but some face barriers in seeking help.  Regardless of the circumstances, domestic abuse is never acceptable.  

Abuse can often escalate from threats into violence.  Whilst physical abuse is dangerous, the emotional and psychological impact of domestic abuse is harmful.  It can make a person feel anxious, question their self-worth and can lead to depression.  

As solicitors, we can advise you on obtaining an injunction – a legal order – to protect you.  We give more explanation below. 

 In summary there are 2 types of order: – a non molestation order forbidding the perpetrator from assaulting, harassing, pestering you or coming/remaining in your property.  If the perpetrator has a legal right to live in your property (i.e. if he is a tenant /joint tenant or owner/joint owner, then we can apply for an occupation order suspending those rights, to make him leave the property.   If you have concerns that the perpetrator may try to take the children, we can also apply for a prohibited steps order to stop him removing the children from you.   

 During the current Lockdown,  we can grant you Emergency Legal Aid via phone and email, and we can apply for an injunction by a phone court hearing. :- 

What can I do?

You do not have to wait for an emergency situation before seeking help.  If you feel that domestic abuse is happening to you, it is important to tell someone and remember you are not alone.  

Women’s Aid, a charity that helps and campaigns for victims of domestic abuse, advise as follows 

Try to keep your mobile phone on you at all times. Try to make sure your mobile phone is charged

.• Family, friends and neighbours can support you

.• Can you safely keep in touch with people you trust over the phone or online? This could be a friend, family member, neighbour, carer, or support worker. You can use the opportunities when you can leave the house to make these calls e.g. when you go to the supermarket.

• Can you talk to them about what you are experiencing?

• Can you have a code word with a trusted person that lets them know it is not safe to talk or to ask them to phone the police?

• Could you agree a regular time and day for them to check-in?

• Let them know if there are safe times to call you

• Get familiar with how to delete messages quickly. If the abuser is monitoring your phone – delete your messages or call records afterwards. You can also try apps that allow for more secrecy. For example, Telegram and Signal

The police are a key service when in immediate danger. Do not be afraid to call 999 in an emergency

Silent Solution: When you call 999, the operator (the person on the phone) will ask which emergency service is required. Listen to the questions from the 999 operator. If you cannot say ‘police’ or ‘ambulance’, respond by coughing or tapping the handset if you can. If prompted, press 55 on your phone. This lets the 999 call operator know it’s an emergency and that you aren’t safe to speak. Click here to find out more.

Emergency text service: If you can’t call because you are d/Deaf or can’t verbally communicate, you can register with the police text service. Text REGISTER to 999. You will get a text which tells you what to do next. Do this when it is safe so you can text when you are in danger. Click here to find out more.

Reporting a crime: If you need to report a crime but you are not in immediate danger, you can call the police on 101 or report online. The police have a duty to protect you and your children. You should not be discriminated against for any reason, including your immigration status. 

Can I get an injunction?

There are two types of injunctions available under the Family Law Act 1996:

1. Non Molestation Order

This protects you and your child(ren) from being harmed or threatened by the person who has abused you. 

The person you want to be protected from may be:

a) Someone you are in or had a relationship with

b) A family member c) Someone you are living with or have lived with

Non Molestation Orders are normally for a fixed period of time, such as 6 months but can be renewed.  There is no limit on the length of time that non molestation orders can be extended to. 

The person named in a Non Molestation Order can be arrested if they breach the Order and you should contact the Police immediately.  The Police should arrest the abuser and bring him back before the Court within 24 hours.  It is a criminal offence to breach a non-molestation order.    

2. Occupation Order 

This decides who can live in the family home or enter the surrounding area. 

The person you want to be protected from may be:

a) You own or rent the home and it is/was intended to be shared with you husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child

b) You do own or rent the home but are married or in a civil partnership with owner and you are living in the home 

c) Your former husband, wife or civil partner is the owner or tenant and the home was/is intended to be your shared homed) The person you lived with is the owner or tenant and the home was intended to be shared

The Court will apply a ‘balance of harm’ test when deciding whether to make an Order.  When making an Order, the Court may make other related orders imposing obligations or the other person, for example to repair or maintain the home or payment rent or mortgage.  

Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home, for example as owner/co-owner, tenant/joint tenant or you have been married to the owner/tenant.  

A ‘power of arrest’ may be required to be attached to the Order, particularly if the abuser has used or threatened violence and this is accepted by the Court.  If there is no power of arrest, then you will need to go back to Court for disobeying the Court Order. The Court may fine the abuser, impose a suspended sentence or commit to presence.  

If you need to be protected immediately, you may be able to ask for an emergency order.  You do not need to tell the person from whom you are seeking protection from that you are applying for an order and this is called a ‘without notice’ or ‘ex-parte’ application.  The person will need to be notified after the hearing that an order has been made and the Court will list another hearing to consider this further or dismiss the application.  

To obtain an injunction, you will need to apply to the Court with a completed application and a sworn statement supporting your application.  

What about coronavirus (COVID-19)?

If you are the victim of domestic abuse and you want to leave your home to stay with someone else, you are entitled to do this during Lockdown.  If you have nowhere to stay, you can apply for emergency housing, although this sometimes can take time, so you may need to stay with a friend or family initially. 

The Courts are currently able to accommodate remote hearings either by the telephone or video call and will consider face-to-face hearings if necessary.  

Do you need to talk to a family law professional?

Our Solicitors at Powell Spencer recognise the seriousness of domestic abuse and can help you make the necessary applications.  Our experienced and qualified Solicitors, many of whom are accredited specialists, have the knowledge and experience to handle your case and put your safety first. 

Legal aid is usually available and we can assess you at the initial appointment.  We also offer tailored and fixed fee services dependant on your needs.

Contact us today.

Protecting clients and staff in the pandemic

Protecting clients and staff in the pandemic

We have taken the decision that in the midst of this pandemic we will as a firm withdraw from all face to face client contact.

This includes all police station attendances, magistrates’ court attendances, crown court attendances and prison visits.

The office will now be closed and a sign will be placed on the shutter with a telephone number for client enquiries. We want you individually to continue to work from home and assist clients by providing telephone advice and via video links (bridging software can be used from home which the LAA will reimburse: http://www.videoconferencebridge.com/court-video-link/4578202639 – we will be sending out a further email regarding this).

It follows that in criminal matters our advice to clients is that it is fundamentally unsafe for us and them to attend court and that we can assist them by writing and telephoning the court to explain their and our absence and to request adjournments and the enlargement of bail.

In family matters it is our understanding the majority of hearings will now take place via Skype for business or by telephone.

It also follows that we are not going to ask any agent or Counsel to risk their lives and we will share this email with the agents we often instruct, freelancers, Counsel and their Chambers.

We are currently investigating how we might continue to support and represent clients using video link software from the safety of your own homes. We will send out a further update regarding this during the week. We have taken this step in the light of everything we have read and know about the highly infectious nature of COVID-19 and our responsibility for your health and safety. In the absence of any positive decision by the MOJ/LAA to protect providers and their staff we decided we cannot wait any longer for such a decision.

Yours faithfully

Greg Powell, Sinead Zaman and Saloud Zaman

27 January 2020 – Not Guilty!

Greg Powell’s client faced a difficult case in which is was alleged he had caused death by dangerous driving. This was a very unusual case in which we were able to obtain medical evidence to show that the cause of death was later negligent medical treatment. This persuaded the Crown to drop the causing death allegation and proceed with a charge of causing serious injury by dangerous driving. After a 5 day trial, our client was found not guilty at the Kingston Crown Court. Thanks go to the excellent Tom Wainwright, counsel from Garden Court Chambers and to the road traffic expert, Dean Beaumont.