This page explains the legal definition of domestic abuse and the legal steps that can be taken to protect a person and/or child from domestic abuse.
Domestic Abuse can take many forms including physical, emotional, psychological, sexual or financial abuse.
What is Domestic Abuse?
Domestic Abuse was formerly known as Domestic Violence in the courts. The terminology changed in 2013 to reflect the fact that ‘Domestic Violence’ was not a wide enough term to capture all the varieties of abuse that persons could be victim of within the domestic environment. The term ‘violence’ tends to imply physical abuse, whereas Domestic Abuse covers physical, emotional, psychological, sexual and financial abuse (this list is not exhaustive), all of which the court holds with the same amount of regard and concern.
What can I do if I suspect a partner has a history of domestic abuse?
Police in England and Wales operate a national disclosure scheme known as Clare’s Law, where an individual has the right to ask and the right to know whether a current partner represents a risk of violence.
It is possible for a third party to apply for disclosure under this scheme; however, the police can exercise their discretion as to whether to inform the potential victim and will not necessarily inform the third party themselves.
In circumstances where the police receive information that may affect a person’s safety, the police can inform a potential victim or a person in a position to protect them.
This right is regulated and the police will only disclose information where it is lawful, necessary and proportionate. The police should meet with other safeguarding agencies before making a disclosure and the disclosure should be sufficiently detailed so as to allow the potential victim to make an informed decision.
What does the law say about domestic abuse?
If you have been a victim of Domestic Abuse, you can take steps to protect yourself from further incidents by the Respondent (the person who is abusive towards you).
The police can issue a Domestic Violence Protection Notice to protect a person from immediate violence or threatened violence. The Magistrates Court can turn a Domestic Violence Protection Notice into a Domestic Violence Protection Order lasting between 14-28 days.
There are also two main Orders which the Courts can make. These are a Non-Molestation Order and an Occupation Order. Legal Aid may be available for an application for a Non Molestation order and/or Occupation Order. This is means and merit tested.
Breaching a non-molestation order now carries a maximum sentence of 5 years imprisonment
What is an Occupation Order?
An Occupation Order controls who can live in a property. It can also restrict the Respondent from entering a certain area.
If you do not feel safe living with the Respondent or you have left because of violence or intimidation and want to return without the Respondent being there, the order you would apply for is an Occupation Order.
Who can apply for an Occupation Order?
S.33 of the Family Law Act 1996 states that you can apply for an Occupation Order if:
You are entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, OR you have home rights in relation to a dwelling-house
The dwelling-house— is or at any time, has been the home of the person entitled and of another person with whom he is associated, OR was at any time intended by the person entitled and any such other person to be their home.
This means that you can apply if:
- You own or rent the home and it is, was, or was intended to be shared with a spouse, civil partner, cohabitant, family member, person you are engaged to or parent of your child
- You do not own or rent the home but you are married or in a civil partnership with the owner and you’re living in the home
- Your former spouse or civil partner is the owner or tenant, and the home is or was intended to be your shared matrimonial home
- The person you cohabit or cohabited with is the owner or tenant, and the home is or was intended to be your shared home
What is a Non-Molestation Order?
A Non-Molestation Order prevents the Respondent from using or threatening violence against you (and if applicable, your child/children) or intimidating, harassing or pestering you. This is to ensure your health, safety and well-being (and if applicable that of your child/children).
A breach of a Non-Molestation Order is an arrestable offence and now carries a maximum sentence of 5 years imprisonment.
If you are a victim of domestic abuse, you may be able to get legal aid to help you with an application for the above orders or any other orders in Children and Family proceedings
Who is an Associated Person?
When you apply for a Non-Molestation Order and/or an Occupation Order, the Court will consider whether the parties are ‘associated persons‘. You may be an associated person if one of the following applies to you:
- I am married to or in a Civil Partnership with someone who is domestically abusive to me
- I am or have cohabited with someone who has been domestically abusive to me
- I used to be married to or in a Civil Partnership with someone who is domestically abusive to me
- I am or was engaged to someone within the last three years who has been domestically abusive to me
- I am related to someone who has been domestically abusive to me
- I am in family law proceedings and a party to those proceedings was domestically abusive to me
- I have been in an intimate relationship of a significant duration with someone who has been domestically abusive to me
- I have a child or children with someone who has been domestically abusive to me.
What is the difference between a With Notice and a Without Notice application?
If you want to make an application for a Non-Molestation or Occupation Order, you should think carefully whether notice should be given to the other parties in the case.
If you are in immediate danger, an application can be made to the court on the same day without the Respondent being there. This is called a Without Notice (also known as ex parte) application. The court must 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 the Respondent is avoiding being served notice to appear before the court.
If the court grants a without notice order, the court will usually list the matter for a full hearing once the other side has been served with notice.
How do I apply for an Occupation Order or a Non-Molestation Order?
If you decide to make an application for either order, you should complete Form FL401. Guidance on filling out the form can be found on form FL700. Both forms are also available from your local Family Court.
You should also provide a statement (see below: Evidence). If you do not wish your address or phone number to be disclosed to the Respondent, you should complete a form C8, making sure you make it clear that your address is confidential.
Once you have completed this, it should be submitted to your nearest Family Court. There is no fee to be paid to make an application for a Non-Molestation or Occupation Order.
A child under the age of 16 can apply for a Non-Molestation or Occupation Order but will first need permission from the court using form C2.
For more detailed information on what to include in a witness statement when applying for a Non-Molestation Order, see our page on Applying for a Non-Molestation Order and our example witness statement.
What evidence do I need to apply for an Occupation Order or a Non-Molestation Order?
You will need to make a statement to the court about the type of abuse you have experienced. You should be as precise as possible about all the ways you have been harmed, the dates and times (if you have them) and the effects on you and, if relevant, your children.
In this statement, it is important that you provide the court with as much evidence as possible of the harm caused by the Respondent’s behaviour. If you have kept a record of past events, or you have independent evidence such as police reports or medical records, it is useful to say this in your statement and try and provide copies of this.
In your statement, you should also explain why you’re making this application urgently and without telling the Respondent (if it is a Without Notice application). One reason for this could be because you fear the reaction of the Respondent if they were to find out what you were doing.
You should end your statement with a Statement of Truth. You should also then sign and date the statement.
Statement of Truth:
‘I BELIEVE THAT THE FACTS STATED IN THIS STATEMENT ARE TRUE’
To download our sample witness statement for an application for a Non-Molestation Order, click here.
How is an order served on the respondent?
Personal service of an order is required. This means that you should arrange for a printed copy to be handed personally to the Respondent. The injunction will not be effective if there is no proof that the Respondent received it.
If you do not feel able to serve the Order yourself, Court staff should be able to provide you with a list of people who are authorised to serve Court orders and to provide a ‘certificate of service’. There is usually a charge.
It is vital that you make arrangements for serving the Order, as an injunction cannot be enforced unless the respondent knows about it.
A copy of the Order must also be delivered to your local police station. The form must be served together with a statement showing that the Respondent has been served with the order or otherwise informed of its terms. If the court makes an Occupation Order, you must serve a copy of this by first class post on the mortgagee or landlord of any relevant property.
What is a return date?
Whenever the court makes either a Non Molestation Order or an Occupation Order without notice (ex parte), the court should set what is known as a return date. Ex parte orders only tend to be made temporarily until the next hearing.
This is a hearing where the Respondent has the opportunity to state if they agree with the order (or why they feel that the Order should not be made fully). The Respondent will be present and will be able to speak to the Judge, either in person or using a representative.
At this hearing the court has the option to:
- continue the Orders that have been made and set a timescale for the Orders to be terminated;
- discharge the Orders;
- continue the Orders until a further hearing but request more evidence or further statements;
- accept an undertaking from the Respondent in place of the Order.
- The Court may think it appropriate for cross-undertakings to be made for both parties.
What is an undertaking?
The court sometimes suggests that, instead of an injunction, the Respondent should make an undertaking (a solemn promise) to the court with similar terms to that in the Order.
This is supposed to have the same strength as a court order and breach of an undertaking constitutes contempt of court.
If the Respondent breaches an undertaking, you would need to return to Court and apply for their committal for contempt of court.
How do I enforce an Occupation Order or a Non-Molestation Order?
Breach of a Non-Molestation Order is an arrestable offence under section 42A FLA 1996 and the respondent could be found guilty of a criminal offence.
An Occupation Order may have a power of arrest attached to it (at the discretion of the court). This would allow the police to arrest the respondent if there is reasonable cause to suspect that the Order has been breached.
If you believe that a Non-Molestation or Occupation Order has been breached, we would advise you to call the police.
As of 11th January 2015, protection measures such as a Non-Molestation Order and Occupation Order can be recognised and enforced in other Member States of the EU. This is under the Regulation (EU) No.606/2013 of the European Parliament and of the Council on mutual recognition of protection measures in civil matters.
In what circumstances is legal aid available when there has been domestic abuse?
If you are a victim of domestic abuse or there is a child protection concern you may be able to get Legal Aid to help you. This can be to help with the Injunctions, Divorce or a Child Arrangements Order.
To be provided with Legal Aid you must be able to give your solicitor some evidence that you have been a victim of domestic violence by the Respondent. They may ask for the following evidence within a certain time frame—for example within the last 2 or 5 years.
Types of evidence:
- criminal conviction
- police caution
- ongoing criminal proceedings
- protective injunction
- an undertaking
- letter from a Multi Agency Risk Assessment Conference
- finding of fact, by a court
- letter from social services
- letter from a GP, doctor, nurse, midwife or healthcare professional
- letter from a domestic violence refuge
Please note that a Non-Molestation Order and/or an Occupation Order has been granted in your favour, this in itself is a gateway to obtain Legal Aid for other family and child law matters such as Child Arrangement Orders, Specific Issue Orders and Prohibited Steps Orders.
For more information on legal aid see our information pages on :
How do the courts consider a history of domestic abuse in private Family law proceedings?
Practice Direction 12J sets out the approach of courts in any application for contact, residence and child arrangements where there is alleged or admitted domestic violence or abuse or risk of this by a party to the case. This Practice Direction was recently amended in October 2017. In this context, domestic violence includes 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. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;
‘Controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
‘Coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.
The presumption of contact (contained within the Children and Families Act) has to be carefully considered in this Practice Direction where there is an allegation or admission of domestic abuse to the child or parent or there is a risk of domestic abuse to the child or parent. The court was only required to evaluate harm or risk of harm to the child in previous revisions whereas consideration must now be given to the other parent. The concerns which had been raised were that, prior to this revised practice direction, the law effectively required the courts to allow ‘contact at all costs’ in all cases without a proper evaluation of the risk of harm from domestic abuse.
At all stages of the court process, particularly in the First Hearing Dispute Resolution Appointment (FHDRA) the court must consider whether domestic violence is raised as an issue and:
- identify the factual and welfare issues involved
- consider the nature of the concern and their relevance to child arrangements
- give directions to hear contested factual and welfare issues in a prompt and fair way
- where violence or abuse is admitted or proven ensure that child arrangements protect the safety and wellbeing of the child and other parent and does not expose them to risk of further harm. Any contact ordered with a perpetrator of violence or abuse must be safe and in the best interests of the child.
- ensure that any interim arrangements are in the best interests of the child and consider whether the safety of the child and the other parent can be secured before, during and after contact.
In any case where a risk of harm to a child arising from domestic abuse or violence is raised as an issue the court should consider directing a section 7 report by CAFCASS or children’s services unless this is not necessary to safeguard a child’s interests.
For the first time, this Practice Direction raises a presumption against interim contact in cases involving domestic abuse and thus places the onus on the parent who is the subject of the allegations to satisfy the court that such contact will not expose the child and/or the parent to an unmanageable risk of harm. This is significantly different from the former provision, which only applied where the court ordered a fact-finding hearing, whereas the revised wording applies when a fact-finding has been directed or ‘where disputed allegations of domestic abuse are otherwise undetermined’.
The court should find information about local facilities for victims and perpetrators of domestic abuse. The court can direct that a party seek advice, treatment or other intervention before having any contact with a child. The court can make an Contact Activity Direction such as requiring a perpetrator to attend a Domestic Violence Perpetrator Programme (DVPP). More information can be found on DVPPs here.