Getting an injunction
The rules around applying for legal aid have changed recently. Please refer to Rights of Women for up to date information on legal aid.
You could try to gain some protection from your abuser by applying for a civil injunction or protection order.
An injunction is a court order that requires someone to do or not to do something.
There are two main types of injunctions available under Part IV of the Family Law Act 1996:
- A non-molestation order
- An occupation order
A non-molestation order is aimed at preventing your partner or ex-partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and your children.
An occupation order regulates who can live in the family home, and can also restrict your abuser from entering the surrounding area. If you do not feel safe continuing to live with your partner, or if you have left home because of violence, but want to return and exclude your abuser, you may want to apply for an occupation order.
Under new legislation, a breach of a non-molestation order is now a criminal offence; however, you should still be able to take your abuser back to the civil court for breaking the order, if you prefer this.
If you already have an injunction, you may have a power of arrest attached, and you can also have powers of arrest attached to an occupation order. These powers come into effect if your abuser breaks the order (see below, Powers of arrest).
While getting a court order may provide some protection, it isn’t always helpful: sometimes it makes very little difference, and it can even (in some cases) be counter-productive. It really depends on the perpetrators fear of being arrested.
Who is eligible to apply for an injunction?
In order for you to apply for one of these orders you must be an “associated person”.
This means you and your partner or ex-partner must be related or associated with each other in one of the following ways:
- Are or were ever married or engaged to be married.
- Are or were ever in a civil partnership or had agreed to form a civil partnership.
- Are or were living together (this includes same-sex and opposite-sex couples).
- Live or have lived in the same household, for example as a flat share (but not as a tenant, border, lodger or employee).
- Are relatives, including: parents, children, grandparents, grandchildren, siblings, uncles, aunts, nieces, nephews or first cousins (whether by blood, marriage, civil partnership or cohabitation).
- Have a child together.
- Have or had parental responsibility for the same child.
- Are parties to the same family proceedings for the same child.
- Are or were in an intimate personal relationship of significant duration.
If you are not eligible to apply for an order under the Family Law Act, or if you are being continually harassed, threatened, pestered or stalked after a relationship has ended, you can also get civil injunctions under the Protection from Harassment Act 1997.
Recent legislation also allows a restraining order to be attached when criminal proceedings have been taken – even if the conviction has not been upheld – if the court believes you are likely to be at risk.
Restraining orders can provide the same protection as injunctions under the civil law but may be more effective as they carry stronger penalties.
Action under the criminal law, coupled with restraining orders, may help you avoid the cost of taking civil legal action if you do not also need to apply for an injunction to exclude your abuser from your home.
If you are applying for an occupation order you either have to have a legal right to occupy the home (as joint or sole tenant or owner of that home), or you have to be or have been married to, or cohabiting with, an opposite-sex partner who is the owner or tenant. The court will apply a “balance of harm” test when deciding whether to make the order.
When making an occupation order, the court may make other related orders imposing obligations on you or your abuser (for example, relating to repair and maintenance of the home, or to payment of rent or mortgage).
Renewal or extensions
Injunctions are normally for a specified period of time (e.g. six months) but can be renewed; or they may be made “until further order”. There is no limit on the length of time that non-molestation orders can be extended.
Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home (i.e. as owner or co-owner, or tenant/joint tenant, or because you are or have been married to the owner/tenant).
Getting legal advice
Although you can apply for an injunction yourself, you might find it helpful to have legal advice. It is best to get a solicitor who has a lot of experience with domestic abuse cases, and who is likely to understand all the issues.
Your local domestic abuse service may be able to refer you to a solicitor who has experience of domestic violence issues.
You could also contact the National Centre for Domestic Violence (NCDV) . They are a charity that provide a free, fast emergency injunction service to survivors of domestic violence. You can call them free on 0800 970 20 70 for advice or assistance on getting an injunction in place.
You may be eligible for public funding (Community Legal Services funding, or legal aid) to pay your legal costs if you are claiming welfare benefits, or are on a low income and have little or no savings. (Your partner’s or husband’s income is not taken into account if you are taking legal action against him.) See below Funding for legal action section.
Going to court
Applications for injunctions under the Family Law Act are held in the Family Court. The application will be in a closed court (“in chambers”) and no one who is not directly concerned with your case will be allowed in.
This means that you will be able to take in your solicitor or other legal representative, but will not normally be allowed to take in a friend or other supporter (though they can stay in the waiting room). The good thing about this is that no members of the public will be there (unlike at a criminal court) and this provides a degree of privacy.
If you are concerned that your abuser might hassle you while you are waiting, you should tell your solicitor who can ask the court officers to keep him away from you. They should also be able to provide separate waiting areas.
You can ask for your address to be kept secret and not read out in court, so that the abuser does not know where you are staying.
How long does it take to get an injunction?
If you are in immediate danger, an application can be made to the court on the same day without your abuser being there. This is called a “without notice” or Ex parte application.
The court will need to consider whether or not you are at risk of significant harm, whether you will be prevented or deterred from applying if you have to wait or whether your abuser is avoiding being served notice to appear before the court.
If the court grants a “without notice” order, you will have to return to court for a full hearing once your abuser has been served with notice.
If there are other family proceedings already in progress (for example, for a residence or contact order for a child) the court may wish to hear the whole case together – but they can still grant an emergency order while you are waiting for the full hearing.
What evidence will be needed?
You will need to make a sworn statement (sometimes called an affidavit) to the court about the physical and emotional abuse you have experienced.
You should be as precise as possible about all the ways you have been physically and emotionally harmed, the dates and times (if you have them) and the effects on you and your children.
It is important that you or your solicitor provides the court with as much evidence as possible of all aspects of harm caused by your partner or ex-partner’s abusive behaviour. It will help if you have kept a record of past events, or if you have independent evidence, such as police reports or medical records.
The court has discretion when deciding to make an order, and has to look at all the circumstances, including the likely effect of any order on the health, safety and well-being of you and your partner or ex-partner, your conduct in relation to each other, your needs, and your financial and housing resources.
The court sometimes suggests that, instead of an injunction, the abuser should make an undertaking (a promise) to the court not to harass or threaten you.
While this is supposed to have the same strength as a court order, and breach of an undertaking constitutes contempt of court, in practice, undertakings cannot be enforced effectively, as powers of arrest cannot be attached.
The court should never accept an undertaking where violence has been used or threatened, and you do not have to agree to accept an undertaking if you do not want to.
If you are applying for an occupation order and do not have a legal entitlement to occupy the property, the court must apply a “balance of harm” test (that is, a test to determine who will suffer the most harm if an order is not made).
Once an order has been made, you should have a copy, and your solicitor should arrange for a printed copy to be handed personally to your abuser. The injunction will not be effective if there is no proof that your abuser received it.
Power of arrest
If your abuser has used or threatened physical violence, and the court accepts this at a full hearing of the case, then it must attach a power of arrest to an injunction (unless it believes you will be adequately protected without this).
This means that a copy of the order must be held on record at the police station (you or your solicitor should ensure that this happens), and the police can arrest immediately if the order is broken, even without a specific criminal offence having been committed.
A power of arrest may be attached even if the hearing was held “without notice” if the court believes you are likely to be at risk of harm otherwise.
Occupation orders are slightly different, however, and a separate ‘power of arrest’ will still be needed.
What happens if the abuser breaks the order?
If your abuser breaks the terms of the injunction, and you are at all fearful for your safety or that of others, you should call the police.
If he has breached a non-molestation order or if there is a power of arrest attached, the police should arrest the abuser (see Power of Arrest above), and are required to bring him back before the court within 24 hours.
If there is no power of arrest, then you (with the help of your solicitor if you have one) may have to go back to court yourself and apply for an arrest warrant. Your abuser is in contempt of court for disobeying a court order. The court may then fine your abuser, impose a suspended sentence, or commit to prison (rare for a first offence). The court is also likely to add a power of arrest to the injunction in order to strengthen it in future.
It is a criminal offence to breach a non-molestation order.
If you are unhappy about the enforcement process being taken out of your hands, it should still be possible for you to take your abuser back to the County Court or Family Proceedings Court for contempt of court – in the same way as you have to do for the breach of an occupation order.
Funding for legal action
The funding for an application for an injunction is free. If you need a barrister or solicitor to represent you that may cost money.
You may be eligible for Legal Aid to cover the cost of your lawyer. See Rights of Women Guide to Family Law Legal Aid for more information
National Centre for Domestic Violence
The National Centre for Domestic Violence (NCDV) helps anyone to apply for an injunction within 24 hours of first contact (in most circumstances). Call freephone 0800 970 2070
Rights of Women
You can contact their free Legal Advice Lines for women by women. Check the website for numbers and opening times
Southall Black Sisters
Provides advice and information on domestic violence, racial harassment, welfare and immigration, primarily for Asian, African and African-Caribbean women. Casework primarily undertaken in London Borough of Ealing, but deals with enquiries on a national basis.
Local Women’s Aid or other domestic abuse support services
Can offer you support in getting an injunction or going to court, and refer you to local solicitors experienced in domestic violence issues.