Injunctions
Leave a CommentWhen an individual finds themselves in a situation where there has been harm, or there is the real prospect of harm from another party, an injunction could be the solution, as Trainee Solicitor, Oliver Johnstone explains:
Injunctions are a powerful tool which play a paramount role in protecting people in abusive, coercive and harassing relationships, whether that be involving a partner or family member.
What is an injunction?
In simple terms, an injunction restricts someone from doing something. When applied to a family law setting, an injunction is utilised to prevent the opportunity for harm to be inflicted on another party. The threshold to be satisfied for an injunction to be granted is high as the powers under the injunction are greatly restrictive. For example, injunctions can dictate who can live in a property and failure to abide by the injunction could result in a criminal conviction.
Types of Injunction
There are two main types of injunction available to an individual who fears a real prospect of harm or has been harmed by another party. The two injunctions which will be the focus of this article are a Non-Molestation Order and an Occupation Order. The two mentioned types of injunction both require an application to be made by an individual to protect them (the applicant) and any children from abuse/harassment by a named person. If protection is required immediately due to the possibility of imminent harm, an application for an emergency order can be made which is known as a ‘without notice’ or ‘ex-parte’ application; the person who is threatening harm (the respondent) will not be provided with notice at the outset of the application in this scenario.
A non-molestation order can prohibit someone from contacting the applicant by any means. The order may also include preventative measures such as stopping the named individual from coming within a certain distance of the applicant’s home or place of work. The purpose of such an injunction is to prevent the aggressive party from threatening/using physical violence, harassment, intimidation etc. The order can also prevent the aggressor from contacting the applicant through third parties.
An occupation order allows the court to determine who is to live in a property or specify what parts of a property each party is to reside in. The occupation order may also stipulate who is responsible for payment of utilities, mortgage repayments etc.
Requirements to Obtain the Injunction
Orders for the injunctions mentioned can be difficult to obtain. A successful application will place a restriction upon the respondent party for a fixed period. This is certainly apparent with an occupation order which may order the respondent party to leave their property. Consequently, the requirements to obtain the injunctions are stringent.
Requirements for a Non-Molestation Order
To apply for a non-molestation order, the respondent must be an ‘associated person’ under the Family Law Act 1996. An associated person is most commonly a partner but can be any of the following: a spouse, civil partner, cohabitant/former cohabitant, relative, in-law, party to the same family proceeding, parent to your child etc. There is a wide range of individuals who fall into the category of ‘associated persons.’
The main consideration for the court when considering an application is to ensure the health, safety and wellbeing of the applicant and any children involved as referred to in Section 42 of the Family Law Act 1996. Therefore, providing evidence detailing any violence, threat of violence, intimidation, harassment etc. can be valuable proof to help the court reach a decision.
When deciding if to grant an order, the court will consider all your circumstances, primarily the need to secure the health, safety and well-being of you and any children as mentioned previously. Evidence of abusive text messages/emails along with photos of any injuries or damage to property will strengthen your case. The court needs to be satisfied that the applicant requires protection given the actions and potential future actions of the associated person. The court is afforded great discretion in deciding the terms of the order which is an advantage of the injunction; the order can be tailored to the individual needs and protections of the applicant.
A non-molestation order will be granted for a given period of time and then the applicant will need to apply for an extension if still required.
Requirements for an Occupation Order
A non-molestation order is invaluable in protecting an individual from harm, but it cannot be used to address who should be allowed to occupy the family home. In this situation, an occupation order is required. It is difficult to satisfy the requirements of the court to grant an occupation order given the fact that an occupation order may deprive an individual from asserting their legal right to accessing their property. Therefore, the court must agree that the applicant will suffer harm/harassment if such an order is not granted. Whilst an occupation order may stipulate who is to reside in the home, it does not alter the legal ownership of the property.
For an order to be granted, the court must be content that the applicant has a right to occupy the property in question. The property must be the ‘home’ of both the applicant and the respondent, and the respondent must be an ‘associated person’, as discussed in relation to non-molestation orders. The court will also consider the practicalities involved with granting such an order such as the availability of alternative accommodation, the needs/finances of the parties involved and the emotional, mental and physical impact such an order will have on any children involved.
Summary
Whilst injunctions can be a powerful mechanism to ensure the safety of an individual from another associated party, injunctions should not be used as a substitute for police involvement. If an individual feels in immediate danger, please always contact the police as a first course of action.
Courts can be flexible in the use of injunctions which enables the orders to be tailored to the individual circumstances of the applicant. Therefore, injunctions have a strong role in the protection of individuals from harm. However, the strict tests applied to injunction applications must be remembered; the restrictive and potentially depriving nature of injunctions means the evidence required to obtain an order are high and reserved for situations where there has been harm or harassment or there is a real prospect of such harm arising.
If you would like further information regarding injunctions and the support available for individuals who are experiencing abuse from an associated person, please feel free to contact us. Our Family Law team would be happy to assist: 01626 772441, law@scottrichards.co.uk.