The Family Law Act 1996

How can the Family Law Act help me?

This new Act, which became law in 1997, protects victims of Domestic Abuse with two different types of orders (Previously these orders were called injunctions and are often still referred to in this way.

A Non-Molestation Order

- which will prevent another person from harming you or a child.

An Occupation Order - which will say who can live in the family home and can order another

person to leave the home.

How do I know if I can apply?
You can apply for an Order against another person if you are related in one of the ways listed below:

• Married -someone to whom you are or have been married
  
• Cohabitants - someone with whom you live or have lived as man and wife
  
• Two people who live or who have lived in the same household - but not if one is the employee, tenant, lodger or boarder of the other
  
• Certain relations - e.g. parent, brother, sister, aunt, uncle, half-sibling (there is a long list and you are advised to obtain a full list from the Court or your solicitor if in any doubt)
  
• Two people who have agreed to marry each other - but you must apply within 3 years of the agreement ending
  
• You and the other person are the parents of a child or have parental responsibility for a child
  
• The natural parent or grandparent of a child who has been adopted or freed for adoption ( only in limited circumstances)

If you are under 18, you will need and adult to act as your "Litigation Friend". If you are under 16 you must have permission from a High Court Judge to make the application. Sometimes the Milton Keynes County Court can act as the High Court - enquire at the Court Office.

Where do I make the Application?
Either your Solicitor will complete an Application form for you or you can obtain forms from the Court Office. In Milton Keynes, although it is possible to apply to the Family Proceedings Court (The Magistrates Court), in practice most applications are made to the County Court.

FAMILY PROCEEDINGS COURTS (MAGISTRATES) ARE NOT ABLE TO MAKE ORDERS IN RELATION TO PROPERTY

You can make your application in any County Court which usually deals with divorce and family cases. If you are hiding from your former partner you may want to deal with a Court some way away. The addresses and telephone numbers of courts are listed in telephone directories under "Courts". County Courts are usually open from 10am to 4pm Monday to Friday.

Milton Keynes County Court is situated at
351 Silbury Boulevard,
Witan Gate East
Central Milton Keynes
MK9 2 DP

The telephone number is 01908 66885
The fax number is 01908230063
The minicom is VII (Gateshead) 0191 4781476


How much will it cost?
The current Fee is £40.00

You will not have to pay a fee if you are receiving

• Income support
  
• Working families Tax Credit (at a particular rate)
  
• Advice from a solicitor under the "Legal Help" scheme

If you receive another benefit or can show that paying a fee would cause you undue hardship, the Court Manager has discretion to waive the fee.

If you have a Public Funding certificate (Legal Aid) the fee will be added to the solicitor's bill.

What information do I need for the FL401 application form?

• Your name and address (tell your solicitor and court staff if the address is confidential) and date of birth
  
• The name address and date of birth (if possible) of the other person (known as the "Respondent"
  
• The names, addresses and dates of birth of any children
  
• The case details of any other family proceedings including the case numbers
  
• If you are applying for an Occupation Order, the details of any Mortgagees or Landlords and copies of any Mortgage or Tenancy agreements

What information do I need for the Statement / Affidavit?
Your solicitor will ask you questions to enable him or her to prepare this document. Check the draft carefully - it is easy to make corrections before you sign it but not later.

If you prepare this document yourself you can obtain a blank form N285 from the Court office. Try to include what is relevant from this list:

• Names, addresses (if not confidential) and dates of birth of you, your opponent and any children
  
• Your relationship to the other person
  
• Occupation and income of you and the other person
  
• Health and any special needs of yourself and any children
  
• Details of the children's schools if not confidential
  
• Details of any other proceedings
  
• What has happened between you and the other person (it is not necessary to go into long historical detail but try to include a summary of what has led up to recent events, a more detailed account of the last two or three incidents that made you feel you needed court protection and explain the effects on the children)
  
• Information about any other help you have sought (e.g. you rang the police who arrested the other person but then released him)
  
• You can attach supporting evidence such as photos or record of police attendance
  
• Explanation as to why you think the order should be made with no notice to the other person if applicable
  
• If you want the Court to order the other person to leave the home, information about any alternative accommodation open to either of you and the children

If you have a witness, s/he can also supply a statement on form N285

How do I issue the Application?
If you have a solicitor, s/he will arrange for you to swear or sign your statement and will then deal with the paperwork for you.

If you do not have a solicitor, you should not sign the forms until asked to do so but take the following to the Court office in person:

• 2 copies of the Application form FL401 plus additional copies for the Respondent, the Landlord etc
  
• 2 copies of the Statement /Affidavit plus additional copy for the Respondent
  
• fee or ask the Court for a Fees Exemption form
  
• proof of receipt of Income support / working Families Tax Credit

What happens when the papers are issued by the Court?
You / your solicitor will receive Form FL402 Notice of Proceedings which gives the date of the hearing. You will also receive copies of the statement and Application form. These papers will be handed to the respondent ("served") by the Court Bailiff or your solicitor's agent. You can serve the papers personally on the other person but it is not recommended in cases concerning Domestic Violence.

What will happen at the Hearing? This depends on whether the case is heard
a) Without the Respondent being notified of the hearing. This is called "ex parte" or "without notice". Cases are only heard in this way in emergencies and it is rare that a Judge would make an order affecting the other person's right to stay in his home without him having an opportunity of being heard. Because many domestic violence cases are emergencies, many cases are initially heard "ex parte" but it is important to explain the nature of the emergency.
b) With the other person present at the hearing having been notified in advance. This is the normal way in which cases are heard. Often called "on notice"

"Ex parte" hearings
Usually the Judge will hear these applications on the day they are issued by the Court. You will be shown with your solicitor into a private Courtroom. Most Judges will already have read the papers. There may be a few questions for you or your solicitor about the events or the nature of the order. If the Judge makes an order it will be for a limited time only and you will be given a further appointment to attend court. The rules about which orders can be made are slightly different to the other type of hearing. The order must be personally served on the respondent, as it is not effective until he has received it. A copy of the order is usually given to the Police where there is a Power of Arrest

"On notice" hearings
If you are worried about your safety at court, arrangements can be made to protect you and you or your solicitor should contact the Court office.
You, the other person and any lawyers will be shown into a private courtroom. The application will be discussed and one or both parties may give evidence. (This means standing in the witness box, taking an appropriate oath or making an affirmation and answering questions truthfully.)

The judge can decide any of the following:

• The case to be adjourned for further information to be provided
  
• The case to be adjourned for further information to be provided but in the meantime a short order will be made.
  
• An order is made to a fixed date in the future
  
• The order is made to continue indefinitely or until one party asks the Court to end or change it
  
• No order

A copy of the order is given to the police if there is a Power of Arrest. A copy must also be personally served on the Respondent even if he was present.

Another alternative is that an undertaking is offered and accepted by you and the Judge
Please see

MORE ABOUT OCCUPATION ORDERS
The Law relating to Occupation orders is too complicated to set out in precise detail on this site. We can only offer some brief considerations and recommend you take some advice from a solicitor.

As an applicant you should consider what if any rights you have in relation to the property in question. As a spouse or former spouse with matrimonial home rights or co-owner you are likely to be "entitled" to occupy the property. Broadly speaking, the Court's powers are less in relation to co-habitants than spouses for example in the duration of orders.

Examples of types of orders the Court can make are:

• Enable you to live in the home
  
• Order the other person to allow you to enter and stay living in the home (e.g. if you have been thrown out)
  
• Order the other person to leave the home (usually some time is given for this)
  
• forbid the other person to live in or occupy the home
  
• restrict the other person's access within the home to particular rooms (e.g. forbid him to come into your room at all)
  
• Exclude the other person from coming into a particular area or estate in which the home is situated
  
• Prohibiting the other person from evicting you

Examples of the factors taken into account by the Judge include:

• Each person's housing needs and resources
  
• Each person's financial resources
  
• The likely effect of any order on each person's (including children) health, safety or well being
  
• Each person's conduct in relation to each other
  
• In some cases the period of time since the parties lived together or since the marriage ended
  
• In some cases the nature of a cohabiting relationship, how long it lasted , whether there were children

In some cases the Court has to consider whether you or the Respondent or any child would be likely to suffer "significant harm" if an order was made or not made. "Harm" has a legal definition as "ill treatment or impairment of physical or mental health".

MORE ABOUT NON MOLESTATION ORDERS
Examples of types of orders that can be made include:

• The Respondent is ordered not to use or threaten violence against you
  
• The Respondent is ordered not to intimidate, harass or pester you
  
• The Respondent is forbidden to molest you or your child in particular in additional ways such as coming to your place of work or to your child's school or is forbidden to communicate with you in any way except perhaps through a relative or your solicitor
  
• The Respondent is ordered not to do the above in relation to any named children
  
• The Respondent can be ordered not to instruct, encourage or in any way suggest that any third party should do any of the above on his behalf.

The factors taken into account by the Judge include

• The entirety of the circumstances
  
• Your health (mental and physical)
  
• Your safety
  
• Your well-being
  
• The health, safety and well being of any children

Additional factors taken into account in "ex parte" situations include

• Risk of significant harm to you or child by the other person if order not made immediately
  
• Whether you would be afraid to make or continue the application if an order was not made immediately

The Judge has to be satisfied of the facts on a balance of probabilities - this means fairly sure (but not absolutely certain).

What is an Undertaking?
This is an alternative to an order and represents an agreement reached between you and the other person.

It is effectively a serious promise made by the abuser to the Judge, promising not to molest or assault you or to leave the home etc. The person giving the Undertaking makes no admissions. No power of arrest can be attached to an Undertaking. Undertakings can be indefinite or of a time-limited duration.

The Court can effectively only accept an Undertaking if you would be adequately protected without a Power of Arrest (which can only be attached to orders, not Undertakings). If you refuse to accept an Undertaking, the Court will go on to hear the case in full.

An Undertaking is as enforceable as an order of the Court if it is broken but the procedure can be slower. It should be served personally and this is usually done straight after the Court hearing.

What is a Power of arrest?
This is an additional order that can be attached to Non Molestation and Occupation Orders. It can be attached to the whole of an Order or to certain paragraphs. It allows a Police Constable to arrest the Respondent if he is believed to have broken the relevant part of the Court Order. The other person has to be brought to court within 24 hours of arrest. The Court then has to decide whether the Order has been broken and if so, on any punishment of the Respondent and any variation of the orders.

The rules about when a Power of Arrest must be attached vary according to whether the case is being heard "ex parte" or "on notice". If the Court is satisfied "on notice" that violence has been used or threatened towards you or a child, then the court must attach a Power of Arrest unless it believes you will be adequately protected without it.

What can I do if the Respondent does not obey the Orders?
The Court retains its dignity and authority by strict enforcement of its own orders. If a Court Order is thought to have been broken, the Court regards the matter very seriously. Not only may you have been hurt, the court will be furious at having its Order disregarded. A person who has broken a Court order is said to be "in contempt of Court" and although this is not a criminal offence the procedure and punishments are akin to the criminal system.

There are several possible ways in which to bring the other person before the Court again
a) If there is a Power of Arrest you should report the incident to the police as soon as possible and request that an arrest be made. The Police should have a copy of the Order but will probably want to see yours as well. You will need to liaise with the police, the court and your solicitor to ensure you and your solicitor are in Court when the other person is brought to Court.
b) If there is no Power of Arrest you can apply by yourself or through your solicitor to the Court for a Warrant for the other person's arrest by providing a further sworn statement setting out the facts. The Police as above should then arrest the Respondent. This method is not frequently used.
c) Apply to the Court for a Committal hearing. This is a formal request that the respondent be committed to prison for breaking the Court Order. You will need a sworn Affidavit. This together with the application "Notice to show cause why you should not be committed to prison" must be served personally on the Respondent. This application does require specialised knowledge and should really be carried out by a solicitor.

The hearing is called a "committal hearing". It takes place in open Court although the Press does not usually attend. The Judge will be wearing a wig and gown as will your barrister. (A solicitor will wear a gown and tabs if s/he has remembered them!) The bailiff is generally present in case an immediate custodial sentence is given. If the Respondent has been properly served he can be dealt with in his absence.
The Judge can deal with the initial hearing in a variety of ways including

• Hear the case
  
• Adjourn the case to another day keeping the Respondent in custody
  
• Adjourn the case allowing the Respondent bail (possibly with sureties) but perhaps strengthening the original order
  
• remand on bail or in custody for medical reports (or possibly a Hospital order)

At the hearing the Judge has two principal decisions
a) Has the Court Order been broken?
b) If so, how will the Respondent (now sometimes called the "contemnor" be dealt with?

The Judge has to be satisfied beyond all reasonable doubt that a Respondent has broken the Order before holding him in contempt - this means virtually certain. If so satisfied the Judge can

• Make no order
  
• Fine him
  
• Send him directly to prison (maximum period is 2 years)
  
• Suspend a prison sentence

In any event the Judge can alter the existing order for example by lengthening the order or extending the power of Arrest. He can also order the Respondent to pay your costs.


Useful links
Summary of the Family Law Act 1996

Protection from Harassment Act information

Information about criminal law proceedings

Court forms

Solicitors Rota

Milton Keynes Domestic Violence Forum Home Page