Types of Protective Orders
A Non Molestation Order can contain various different prohibitions upon the Respondent (this meaning the person against whom the Order is obtained). The Respondent may, for example, be prohibited from:
using or threatening violence
intimidating, harassing or pestering
communicating with the person who obtained the Order against them
The Judge is able to tailor the Order to meet the needs of the person seeking the Order. The purpose of the Non-Molestation Order is to provide the person seeking the Order (the Applicant) with protection against the other party.
Enforcement of a Non-Molestation Order
The introduction of the Domestic Violence, Crime and Victims Act 2004 brought about changes to the procedure with regard to enforcement of Injunction Orders. Previously the Court may have attached a 'Power of Arrest' to a Non-Molestation Order. The Power of Arrest would enable the Police to arrest the Respondent if they were satisfied that the Respondent had broken any part of the Injunction Order to which the Power of Arrest was attached.
The introduction of the Domestic Violence, Crime and Victims Act 2004 (Section 42A) brought about changes, which now mean where any person, who without reasonable excuse, does anything that he is prohibited from doing by a Non-Molestation Order, they are guilty of an offence. The offence may be prosecuted, through the criminal procedure in either the Magistrates or County Court.
The introduction of the Domestic Violence, Crime and Victims Act 2004 brought about a higher penalty for breach of a Non-Molestation Order. If found guilty of breach of a Non Molestation Order a term of imprisonment may be imposed, a fine, or both. A term of imprisonment may be for a maximum period of five years.
If arrested for breach of a Non-Molestation Order, the Police will lead a conviction against the Respondent. Although we can obtain the Order, we will not be involved in the prosecution of the Respondent in the event of the orders breach. The prosecution will be brought by the Crown Prosecution Service.
In the event that the police cannot or will not enforce the Order as detailed above, a breach of the Order can be enforced by commencing civil proceedings for the Respondent’s committal to prison for contempt.
Pursuant to Section 33 of the Family Law Act 1996 the Court can make an Occupation Order. A person has a right to seek an Occupation Order if they are entitled to occupy the property, has matrimonial home rights in respect of the property or it has been or was intended to be a home for them. We are able to offer you specific advice, taking account of your circumstances, as to whether you fall within this category and can seek an Order under Section 33 of the Family Law Act 1996.
When considering whether to make an Occupation Order the Court must take account of Section 35 (6) of the Family Law Act 1996. The Court shall have regard to all the circumstances including:
the housing needs and housing resources of both parties and any relevant children
the financial resources of each party
the likely effect of any order, on the health, safety or well being of the parties and any relevant children (if they do not exercise its powers under subsection (3) and (4)
the conduct of the parties in relation to each other and otherwise
the length of time which has elapsed since the parties ceased living together
the existence of any pending proceedings between the parties e.g. Ancillary Relief/Financial proceedings within Divorce
If successful in obtaining an Occupation Order a declaration may be made confirming that the Applicant has the right to occupy the property. The Court may also make an Order that one party leave the property enabling the other party to return.
Enforcement of an Occupation Order
The Court can still attach a Power of Arrest to an Occupation Order, despite the fact that this cannot be attached to a Non-Molestation Order. If a power of arrest is attached to an Occupation Order, then any breach can be notified to the Police and they would have the power to arrest the Respondent and produce him to the Court who made the Order.
NB. It is important to note that both Non-Molestation and Occupation Order are only in force once they have been served upon the Respondent and the Respondent is aware of the terms of the Order. This is normally effected by personal service of the Order. This means that the Order will be handed to the Respondent by a Court Bailiff or Process Server.