Domestic abuse – Injunctive orders, Covid 19 and the Courts – the practical bits

Back when things were ‘normal’, Non Molestation Orders and Occupation Orders could be very effective tools in protecting victims of domestic abuse. However, during the COVID-19 pandemic, it is still unclear how effective such orders will be.

The first difficulty will come in the form of how a victim of domestic abuse, who cannot leave their home and the presence of the perpetrator, will be able to seek legal advice or provide instructions. The court still understandably, expect the Applicant to send a witness statement to the court alongside their application. This could be very difficult for a victim of domestic abuse to put together at the best of times, least of all when they are stuck in a household with the perpetrator of that abuse and unable to leave. As legal advisors, we would of course try to work with the victim as much as possible in order to make ourselves available at times that suit the victim and working using the mode of communication that best suit them.

Once the application is ready and filed with the court, things become easier, the court are prioritising applications for injunctions and continue to hear these applications. The hearing will either take place remotely, via telephone or video conferencing, or if the court deems it appropriate, the application will be considered and ideally orders granted on paper only. This means the Judge will consider the application and statement and will hopefully grant the order sought without having to hear from the parties.

This brings us to the greatest hurdle of all. Where parties live in the same household, serving an abusive partner with a Non Molestation Order and/or Occupation Order could result in further abuse. The Respondent will know that an order has been applied for and exactly what has been said about them by the victim. Sadly, this could lead to an aggressive reaction or pressure being placed on them to withdraw the application.

More importantly, when it comes to Occupation Orders, at a time when we are expected to confine ourselves to our home - friends and family are unlikely to want to accept an individual into their household and vulnerable or older persons should not accept an individual into their household – how can the court grant an Occupation Order expecting the Respondent to leave the family home, when they have nowhere else to go. Even the usual suggestion of a hotel or short term let might not be feasible.

One solution that might be considered would be for the courts to use the Occupation Order as a means of managing the use of the home. For example, directing that the Respondent must not enter the kitchen/lounge at certain times and must not enter the Applicant’s bedroom at all. This combined with a Non Molestation Order could protect the Applicant from further harm, but only where the order is respected. It would also no doubt create an incredibly uncomfortable living situation which is likely to be confusing for any children involved.

Alternatively, the courts might need to look to the Applicant to move out of the home into a Refuge, most likely with any children of the family. This is often difficult as it will cause disruption to the children at a time when their worlds are already turned upside down as a result of school being closed and their being isolated from their friends and families.

The final issue will be one of service, Non Molestation Orders come with an automatic power of arrest. This means that if the order is breached the police can arrest and charge the individual with breach of a Non Molestation Order, as a separate offence. However, to do this the police need to be satisfied that the order has been personally served on the Respondent and of course, the order does not have any effect until it has been served on the Respondent in any event. In light of social distancing and stay at home measures, it is unclear how such an order can be personally served. The courts will accept service by other means such as electronic service, or posting of the order through the letterbox by a process server, but it is sadly unclear whether this form of service would be sufficient for the police to prosecute.

Unfortunately, like most things at this difficult and unprecedented time, there are more problems then there are solutions. However, what is clear is that both we, as solicitors, the courts and domestic abuse charities are and will continue to pull together to protect victims of domestic abuse at a time when they need it the most. We will find a way to overcome these issues and what route is taken will ultimately depend on the facts of the case. No cases are ever the same and no people are the same and therefore there is no one size fits all solution here.

If you are a victim of domestic abuse, we are here to help you, alternatively, if it is support that you require, information about the various support available can be found here: https://www.gov.uk/government/publications/coronavirus-covid-19-and-domestic-abuse/coronavirus-covid-19-support-for-victims-of-domestic-abuse

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