Legal Redress
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Taking Legal Steps -The Victims Perspective
After doing the practical things needed to ensure short-term safety, there are some legal steps to make sure the law can protect the victim. Help is available from the criminal law and the civil law, together or separately.
There are a number of Choices depending on:
- What has happened
- What the Victim wants to do, and
- What they can afford
Why Legal Steps May Be Necessary
There are several reasons why someone may need to use the courts, if:
- Their partner is violent and the police are called to the incident.
- Their partner has been violent and the police are called after the incident.
- Someone else informs the police.
- A partner has been violent and advice is sought from a solicitor.
- A partner is violent, the police are involved and a solicitor is consulted.
In all these situations the law is the same but access to it is in slightly different ways and there will be different choices to make.
Each of these is described below:
Their Partner is violent and the police are called to the incident
The police will normally take steps straightaway to protect the victim and any children. They may arrest the partner if they believe he or she have committed a crime, such as assault. If they arrest and then release him or her on police bail, they can impose conditions to protect the victim and stop him or her doing it again. This may include stopping him or her:
- Coming back to the house for the time being, or
- Contacting the Victim and Children.
The police may follow up an emergency visit and investigate what has happened.
Their Partner has been violent and the police are called after the incident
Call the local Police Station on 0845 60 60 222 (Humberside Police). They will normally talk to the victim on the phone and may arrange to meet to investigate the complaint, and help decide what to do. The Domestic Violence Liaison Officer will be able to advise about options. If the decision is to stay in the home, the officer can advise on how to keep ones self safe and how to call for help if needed. Some Police Forces have special Panic Alarms and Mobile Phones they can give so that a call for help can be made quickly if needed.
Someone else informs the police
The police will follow this up and contact the victim to find out what has happened. The Domestic Violence Liaison Officer will phone to arrange to investigate the complaint, and help the victim to decide what they want to do.
A Partner has been violent and advice is sought from a solicitor
A solicitor who specialises in Family Law is needed and possibly also one who takes publicly funded (legal aid) cases.
'Resolution' is an association of specialist solicitors who take a sensible approach to Family Law and try to keep things on a friendly basis. It keeps a list of solicitors and will have a list of the member solicitors. The Law Society also has a Family Law Panel. Solicitors on the Panel have to pass an exam and prove they have Family Law experience. The Law Society will provide names of solicitors on this panel in the area.
If emergency help is required because the victim has had to leave their home, this should be made clear to the firm of solicitors when an appointment is made. A solicitor can advise about applying for what is called a civil injunction against the partner, if this is what is wanted - see section on 'Court Orders' below. A solicitor may also advise the victim to tell the police what has happened.
A Partner is violent, the police are involved and a solicitor is consulted
The Domestic Violence Liaison Officer will talk to the victim and discuss their options. The police may also say that the victim can get an injunction (a Court Order to stop the Partner from abusing the Victim and/or the children). They may even suggest that a solicitor is seen to sort this out, even if the police are going to take criminal action against the Partner.
What the Police can do
The Police can take action to protect both victim and any children. They may do this by making an arrest, if they have the power to do so, and holding him or her for a short time (for example overnight).
The Police will then normally investigate what happened, to see whether a crime has been committed. However, it is the Police and Crown Prosecution Service (CPS) - not the Victim - that decides whether or not the Perpetrator should be taken to Court.
The Victim should not be put under pressure to make a complaint about their partner if they decide that they do not want to. If they drop the complaint, the police will still want to make sure that they will be safe and may want to talk to them about their decision. The CPS can go ahead and prosecute the Perpetrator anyway if it has enough evidence.
If the CPS does prosecute the Perpetrator, he or she could be fined or given another type of sentence. They could even be 'bound over to keep the peace' (told they must behave, or they will be brought back to Court). In cases of serious or repeated violence, they could be sent to prison.
Action by the Police may stop the Perpetrator behaving badly again. If he or she is on Bail, the Police or the Court can impose conditions stopping him or her coming near the Victim's home or workplace, or from contacting them or the children. They can also impose other conditions, if they think these are needed to protect the Victim.
If the Perpetrator is prosecuted for assault in the Criminal Court, the Court won't sort out who has the right to live in the home or impose an order saying how the Perpetrator must behave or restricting where they can go. To do this the Victim needs to go to the Civil Court and get an Injunction. See section on 'Court Orders you can get to protect you'.
What a Solicitor can do
A Solicitor should advise the Victim about what they can do, and the best choices for the situation. In some cases it may not be necessary to get an Injunction to be safe from a violent or abusive partner. Sometimes a strongly worded Solicitors letter can stop an ex-partner from abusing again.
The Solicitor should check whether or not public funding (legal aid) is eligible to pay for any Court proceedings. Whether someone can receive public funding depends on how much they earn and how much money and property they have. It also depends on each case and whether a solicitor is needed to apply to the Court. Some of the costs may have to be paid. This can be checked on the CLS Online Legal Aid Calculator (See External Links).
Some Solicitors may say that Public Funding is not available if the Victim can use the Police instead, but this is not true. If the Victim wants to apply for a Court Order to protect themselves from Domestic Abuse, the application form for Public Funding asks whether they have reported the matter to the Police and considered whether writing a warning letter to the ex-partner will stop his or her behaviour.
In some cases this may be better than an Injunction and, if this is so, then they won't be given Public Funding. However, this may not be the right course of action, for example because the Victim may need to bring Civil proceedings to deal with the ownership of the home. In this case, the Solicitor needs to explain this on the form.
If the Victim doesn't qualify for Public Funding they will have to pay the solicitor out of their own money. They can be expensive, especially for an Injunction, because this involves Court proceedings. If someone is in this position, they should ask the Solicitor to give them a realistic estimate of the costs at the start.
How does Someone get a Court Order
If a Court Order is needed to protect the Victim (and any Children) for the future, the Victim can apply to the Court for an Injunction. An application is made by filling in a form and making a written statement describing what has happened. They have to swear that the contents of the statement are true. (This statement may be described by its old name, 'affidavit') Once this is handed in to the Court, the Court fixes a day for the hearing. The Perpetrator should be given two days notice of a hearing, and the papers must be given to him or her personally.
The Solicitor (if one exists) will fill in all the forms and arrange the papers to be 'served on' (personally given to) the ex-partner. The Victim will need to be at the hearing. The Solicitor will tell them where to go and arrange for them to be represented at Court.
If the situation is so serious that an order is required immediately, an application to the Court can be made on the same day, without telling the ex-partner. This is called applying 'without notice' (some Lawyers use the old expression, ex-parte'). If there is an application 'without notice', there will generally be an order about the way the ex-partner should behave (a 'Non-Molestation Order'). If an Order is obtained this way, it must then be served on the ex-partner and the Judge will fix a day in the near future for a hearing that both must attend.
What if Someone can't get Public Funding and cannot afford a Solicitor?
It is possible to act for yourself in the Civil Court. The local County Court office will be able to provide the forms needed to fill in and a leaflet, 'Part IV of the Family Law 1996: How can it help me?' These forms and the leaflet can be downloaded from the Court Service website (see External Links). There is a fee which should be checked before starting the process. If this cannot be afforded, a form can be completed asking for it to be waived.
It may be possible to apply to the Family Proceedings Court (the family part of the Magistrates' Court) instead. If this is done, it is not necessary to pay a fee. However, in many parts of the Country the Family Proceedings Court will send you to the County Court. Before applying, phone the local Family Proceedings Court to ask whether it does this.
- Scunthorpe Court Centre 01724 281100 (ext - 248)
- Grimsby Magistrate Court 01472 320444
COURT ORDERS THAT CAN BE OBTAINED TO PROTECT SOMEONE
Court Orders generally fall into two parts:
- Orders about the way an ex-partner should behave in future 'Non-Molestation Orders'.
- Orders saying who has the right to live in the home - 'Occupation Orders'.
Non-Molestation Orders
These Orders tell the ex-partner they must not use, or threaten to use, violence against the applicant or 'harass, pester or intimidate' them. This can also apply to any children living with the applicant. The Order is generally written in wide terms to stop all forms of unpleasant behaviour including, for example, threatening phone calls. It will also stop the ex-partner getting someone else to harass their ex-partner.
Occupation Orders
If the Perpetrators behaviour has been serious enough for them to be kept apart from the Victim in order to protect them, then the Victim will need an Order saying who can live in the home.
An Occupation Order can order any number of the following:
- One Partner to leave the home
- One Partner to let the other Partner return to the home
- On Partner not to return to the home, or
- One Partner to keep away from the home
The Court can also make orders about:
- Who will repair and maintain the home
- Who will pay the mortgage or rent and other costs, and
- Who can use and care for things in the home
An Occupation Order cannot be used to change the ownership of the property. This needs to be sorted out through separate legal proceedings, and legal advice should be sought about this.
What will the Victim have to tell the Court?
For a Non-Molestation Order, they will have to tell the Court about the violence or abuse. If they have received medical treatment because of the violence or abuse, it helps if they can prove this. A doctor's report and photographs of any injuries are useful for this.
For an Occupation Order, the Court needs more information. The Judge needs to know about:
- Theirs and their partners housing needs (and the needs of any Children they have).
- How much money they both have.
- How any Order will affect the Victim and their Partners (and any Children's) health, safety and well being, and
- Their behaviour towards each other.
If they are not married the Judge also needs to know:
- How long they have been living together.
- Whether they have Children or Step-Children
- How long they have been separated.
- Whether they are both in any other legal proceedings together, such as any other Court proceedings about their family.
What will happen at Court?
The Solicitor (if they have one) should arrange for them to have a Solicitor or a Barrister at Court, who will speak for them to the Judge. If they do not have a Lawyer, they will speak directly to the Judge. The Judge will read the forms they have filled in, and their statement about what has happened and what their Partner has done.
Their Partner will be able to reply to what they have said about him or her. If they have had enough time before the hearing they may state their reply in writing. If the ex-partner does not significantly dispute what has happened and wants to sort something out, he or she may offer the Court an 'undertaking'. This is a solemn promise about their future behaviour similar to an Injunction. Sometimes, the applicant may also be asked to give an undertaking about their behaviour.
The Judge does not have to accept an undertaking - it depends on whether it looks as if this will keep someone safe enough in the future. See section on 'How a Court Order protects Someone' below.
When the Judge has heard from both parties, he or she will make an order or set out the terms on which the Court accepts an undertaking.
What if the Partner isn't there?
The Partner may not be at the Court hearing for a number of reasons:
- The Victim may have gone to Court as an Emergency without serving the papers on their partner.
- It may not have been possible to serve the papers on the partner before the hearing.
- The Partner has been served with the papers and does not turn up in Court.
- The Judge can make an Order even if the Partner does not come to the hearing
If the Partner has not been served with the papers (because it is an emergency hearing or he or she can't be traced), then the Judge will fix another date in the near future to give another chance to serve the papers. The Judge may also make a short-term Non-Molestation Order to protect the Victim and any Children until that hearing. The Judge will not normally make an Occupation Order if the Partner has nor been served with the papers, but may do this if it seems the best way to provide protection until the next hearing.
If the Partner has been served with the papers and has not come to Court, the Judge will make whatever he or she believes are the appropriate orders to provide protection.
How a Court Order protects Someone
A Court Order tells the Partner what he or she must and must not do. If they break this Order, there is the right to bring the case back to Court and ask for them to be punished. If the Partner disobeys the Order or undertaking, it is up to the applicant to decide to bring the matter back to Court - no one else will enforce the Order. If their Partner breaks the Order, they should tell their Solicitor straightaway so that a decision can be made on what to do next.
The Judge can fine the Partner or imprison him or her, sometimes just for a few days or for months, depending on what he or she has done. A Judge will not always choose imprisonment if something else may work better to provide protection for the future.
If the Partner has given an undertaking and does not keep their promise, the Judge can punish this too.
If there is a 'Power of Arrest' with the Order, this makes it stronger because it means that the Police can arrest the Partner if he or she breaks the Order. (See section on Breach of Non-Molestation Order) The Police (not the Victim) should then take the Partner back to Court. However, the applicant will need to attend Court to tell the Judge what happened and how they want their Partner to be punished. The Judge must attach a 'Power of Arrest' to the Order if he or she believes that the Partner has used or threatened violence. There cannot be a 'Power of Arrest' if the Partner has given an undertaking.
What happens after the Hearing
The applicant will get a printed copy of the order made by the Judge. The Solicitor should give a copy to the applicant and send a copy to the Police, which should be kept at all times. Either the applicant or the Solicitor must make sure that the Partner receives a copy too. It is important that the Partner is handed the Order personally because the Order will not be effective if it cannot be proved that the Partner knew about it. If there is a 'Power of Arrest' on the Order the local Police Station must also be given a copy of the Order.
The Order generally lasts for a fixed period of time - three months for example. If necessary, the Victim can go back to Court at the end of this period to get another order to keep them safe.
Can other Court Orders be applied for
If married, the divorce proceedings may be an issue. If there are children, then any argument between the two parties needs to be sorted, about where they are going to live ('residence') or visiting arrangements ('contact'). For example, legal proceedings may need to start about who owns the home.
A Solicitor can advise about whether Public Funding is eligible to cover these things.
What should someone do if they fear that their partner will take the children away?
The Solicitor should be informed at the start of the case. A decision can then be made whether the Court should be asked to make Orders about the Children or their passports. An organisation called Reunite can offer information and help to parents who fear that their Children have been abducted or may be abducted.
What if the Partner snatches the Children?
If there is a fear that Children are likely to be taken out of the Country, the Police must be told immediately. They can issue a port alert to try and stop them leaving. The Police will need a full description of the Partner and the Children. Photographs would also be useful. The Solicitor should also be informed as soon as possible.
Even if there is not a belief that they will leave the Country, the Solicitor must be informed. He or she can then take steps to get an emergency Court Order for their return.
If the Children are taken out of the Country, the Child Abduction Unit may be able to help.
What if the abuser is not a partner?
An Injunction in the Civil Court under the Family Law Act 1996 can be obtained if the abuser is:
- A former husband or wife.
- Someone the person is or has been, engaged to.
- Someone they live, or have lived, with (but not a tenant or landlord, employer or an employee.
- A relative, including half and step relatives
- The other parent or someone who shares parental responsibility for a child of the victim, or
- An adoptive parent of a child of the victim (or someone who is due to be an adoptive parent).
If the Victim does not fit into any of these categories, there are still laws that will help. For instance, a former boyfriend or girlfriend can be stopped from harassing by using the Protection from Harassment Act 1997.
This Act gives the Court the powers to impose Restraining Orders that are similar to Occupation and Non-Molestation Orders.
Breach of Non-Molestation Orders
From 1 July 2007 a breach of a Non-Molestation Injunction (or Order) is a criminal offence. (Amendment to section 1 of the Domestic Violence, Crime and Victims Act 2004 insert section 4SA into the Family Law Act 1996 ).
Previously a breach of such an order has been punishable only as a civil contempt of Court. Effective enforcement was dependent on whether the Court attached a power of arrest to the Order. If no power of arrest was attached, the victim was required to apply to the Civil Court to obtain an arrest warrant.
With Non-Molestation Orders made after 1 July 2007 there is a power of arrest available under Section 24 of the Police and Criminal Evidence Act (PACE) - since any breach constitutes a criminal offence. Police Officers should note that it would be difficult to envisage a scenario when the 'necessity test' under Section 24 was not met.
This same power of arrest will apply to those Orders made prior to 1 July which have no attached power of arrest. A breach of such an Order is now, by virtue of the Act, a criminal offence.
The forms used by the Courts in such cases detailing the power of arrest and explaining that the respondent will be charged and either bailed or detained to appear before a Magistrates' Court by the Police. The usual rules apply for the witholding of bail by the Police but again it may prove difficult to justify the release on bail of such an offender.
In the short term, the Police will hold examples of both the old style and the new style injunctions.
Orders made on or after 1 July 2007 with attached power of arrest - if such a Non-Molestation Order is breached, enforcement is unchanged. If there is a power of arrest contained within the Order then it may be utilised. The Respondent is brought back to the Family Court that made the Order. There is no requirement to interview the offender or to crime the incident (as this breach remains a civil matter and will be dealt with by a Civil Court).
Orders made on or after 1 July 2007 or previously granted Orders without attached power of arrest - if this Non-Molestation Order is breached, the Police Officer now has a power of arrest (Section 24 PACE) and is required to commence an investigation as they would with any other criminal offence. Breaches will now be heard as criminal offences in criminal courts, where the defendant can only be represented by Criminal Lawyers as opposed to Family Lawyers.
If unsure about whether or not a Non-Molestation Order meets the new criteria regarding a breach, advice should be sought at all times.
Investigation Process
This (now criminal) breach should be investigated as would any criminal offence, witness statements will be required in respect of the breach and the offender interviewed.
Consideration should be given to proving the following:
- That an Order has been made and is in existence.
- The Suspect is aware of the Order (Orders are only activated once they have been served upon the respondent/suspect. After the Injunction is served, the Police are given a copy to keep on their systems. Therefore if the Injunction is current and is on the Police system, the suspect would normally have had it served upon him/her and would be aware of what it means. The Family Practitioners have been encouraged to attach a copy of the affidavit on which the Order was based when they lodge the Order together with evidence of service, since most are made ex-parte, so Officers seeking a charge would ideally have copies of the Order, the affidavit and the proof of service among other evidence of the alleged breach.
- That a breach has in fact taken place and the suspect does not have a reasonable excuse for his/her actions.
A Breach of a Non-Molestation Order made after 1 July 2007 (or of an Order made prior to this date without an attached power of arrest) should be crimed in accordance with NCRS rules.
For offences against the State, the points to prove to evidence the offence must clearly be made out, before a crime is recorded (Annex A National Crime Recording Standard 1-6).
The current entry for this offence is included in the other offences category of the HOCR on the audit and inspection website - code 66/39.
If there are any concerns regarding the welfare of children then Children and Young People's Service should be contacted.
Decision re charge will be made in accordance with the Directors Guidance for Statutory Charging - remembering that any offence involving Domestic Violence must be authorised by the Crown Prosecution Service.
For more comprehensive information including a check list of required evidence and documents please see the CPS website (see external links).
Terms used in matters to do with Domestic Abuse
Civil Court: Courts that do not deal with crime. For Family Law Injunctions, you generally use the County Court, although you can sometimes use the Family Proceedings Court.
Criminal Court: Courts that deal with crime. Cases start in the Magistrates Court and may go from there to the Crown Court. If a defendant is found guilty, then the Court can impose a punishment, such as a fine or a prison sentence.
Family Proceedings Court: The section of the Magistrates Court that deals with Family Cases. It can sometimes be used instead of the County Court.
Injunction: An Order made by Civil Court telling someone they must not do something. If they breach it (disobey it) the person who got the injunction can ask the Court to punish them.
Parental Responsibility: All the rights and duties that go with parenthood, such as the duty to care for and protect the child, the right to consent to medical treatment and the right to choose a child's name, religion and schooling.
Partner: For the purposes of this document, partner means someone you are living with, either husband or wife or cohabitant. You may be part of a heterosexual (male-female) or a same sex couple. Sometimes the law is different, depending on whether you are married, or whether you are a male-female or same sex couple.
Return Date: A date on which a case has to come back to Court for another hearing.
Service: Delivery of Court Papers to someone who is involved in the case. For an Injunction, the service must be personal - the papers must be handed to the person who is being served, by someone who can then prove to the Court that they have been delivered. A Solicitor or a Court Bailiff can arrange to personally serve papers.
Undertaking: A solemn promise to a Court. The promise is recorded in the Court Order and, if broken, the person making the promise may be punished. However, making such a promise does not mean you are saying you are guilty of having done something in the past.