Domestic violence and protection in the Family Court

It has been reported that in at least 60% of cases brought before the Family Court consist of an element of domestic violence, with the majority of incidents being directed by men against women.

The government defines domestic violence as “Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.” 

Within the Family Court there are two injunctions you can apply for to protect yourself from domestic violence: –

1. An occupation order to exclude someone from your home (s 33-38 Family Law Act 1996); and/or
2. A non-molestation order to prevent someone from being violent, threatening violence, harassing or intimidating you (s 42 Family Law Act 1996).

An application for an occupation order or non-molestation order must be made on Form FL401 together with a supporting witness statement.  There is no court fee applicable to cases involving domestic violence. 

Breaching a non-molestation order is a criminal offence that carries a maximum sentence of 5 years imprisonment and/or a fine.  If a non-molestation is breached, the victim should notify the police immediately for the respondent to be arrested. The respondent is then to be brought back before the court within 24 hours of being arrested.  

The consequences of breaching an occupation order are dependant on whether the order includes a power of arrest.  The court will only attach a power of arrest to the order if the court is satisfied that your abuser has used or threatened violence against you.  The penalty for breaching an occupation order is punishable by up to two years imprisonment and/or a fine of up to £5,000.

This means that the court will not attach a power of arrest to orders relating to victims of controlling and coercive behaviour, and if breached, victims are left with no choice other than to make an additional application to the court.   The victim has the option whether to make an either make an application within civil proceedings for committal, or alternatively apply to the Family Court for a warrant for arrest.

In order to apply for a warrant for arrest, the victim will need to make an application to the court, which should be made in form FL407 together with a witness statement setting out the reasonable grounds for believing that the person has not complied with the order and an accompanying sworn statement (FL401SR).  Court’s are likely to vary the existing occupation order to add a power of arrest to ensure the order is complied with in the future.

If you wish to bring an application within civil proceedings for committal, civil procedure rule 81 should be followed.  Court’s have a range of sanctions available to include a fine or custodial sentence of up to 2 years in prison.  In the leading case of Hale v Tanner [2000] 2 FLR 879 the Court of Appeal summarised the factors the court should consider when imposing a sanction for a breach of a family law injunction to include:-

• Committal to prison is not the automatic consequence of breach of an order;
• Nevertheless, there is no principle that prison should not be imposed on the first breach;
• The court has a range of options, from no order, through fines and sequestration to imprisonment;
• A mental health order may be appropriate;
• Where prison is appropriate, the length of sentence should be determined without reference to whether it is to be suspended;
• In committal there are two objectives – to mark the court’s disapproval of the breach and to secure future compliance;
• The seriousness of the events must be considered in that light; and
• The period of imprisonment must bear some relation to the two-year maximum sentence

Please contact Kathryn Ainsworth or Victoria Grant if you would like more information about the issues raised in this article or any aspect of family law.