Domestic violence is very common.  It is a pattern of abusing and controlling behaviour which often escalates over time. Domestic violence can include physical assault, sexual abuse and rape, psychological, emotional and financial abuse, threats, harassment and intimidation.  Statistics show that the perpetrators are usually men, and their victims are usually women.

Getting protection - what options do I have?

If you are frightened of your current or former partner, then you have a right to be protected under the current law.

• Being assaulted by someone you know or live with is just as much a crime as violence from a stranger, and is often more dangerous.  You have a right to protection under criminal law.
• You can apply for a court order to tell your abuser to stop harassing or hurting you, or to keep out of, or away from, your home.
• If you are experiencing or are at risk of domestic violence, you can get help with emergency or temporary accommodation.
• The law can also help to protect your children.

Help available under the criminal law

Always dial 999 in an emergency.

What action can the police take?

If you call the police because your partner or ex-partner is harassing, hurting, or threatening to hurt you or your children, then they have a duty to protect and help you, and to investigate your complaint.  There are several types of laws and offences under which the police can take action against domestic violence.

Most police forces now have guidelines about how to respond to domestic violence, and officers will usually arrest, and remove or hold your abuser in another room, to give you the opportunity of being listened to and spoken to separately, away from your abuser.  The police should also offer information about local women's refuges and offer practical help such as arranging medical aid, transport and a safe place for you to go.  If they do not do any of this, ask for it - it is your right.

The police will need to take a statement from you.  You can ask to be seen by a woman police officer if you prefer. They should also obtain evidence of injury or damage to property.  Any evidence you or others may have is very important and you should also tell them about any other agencies or neighbours who may know about the violence, how the abuse has affected you and whether there are any injunctions (court orders) in place against your abuser.

In most police forces they have specially trained, experienced Domestic Violence Officers who will also contact you, keep you informed of what's happening, follow up the investigation and tell you about other sources of help and support locally.

Your abuser can be held pending investigation by the police for up to 24 hours (36 hours at weekends) before being charged and taken to court.  If there is insufficient evidence at this stage to charge, but the police think there will be when further enquiries have been made, they can release him on bail.

After they have charged your abuser the police can impose conditions on bail, for example to stay away from you or your home.  The police will only do this if they think he will commit further offences whilst on bail or interfere with or threaten you or any other witnesses.

What happens next?

If your abuser is taken to a Magistrates Court after arrest, then the court will either remand him in custody or release him on bail.  This will depend on the seriousness of the charge.  The police can recommend he is remanded in custody instead of given bail, on the same grounds listed above.  If bail is given, the court can also set similar conditions and this may also include having to live at a certain address.

Once your abuser is arrested and charged the police will pass the case to the Crown Prosecution Service (CPS).  They are independent from the police and they will consider whether the charge is correct and also decide whether or not to proceed with prosecution.

It may be several weeks or months before the full case is heard.  During this time you may be contacted again by the police on behalf of the CPS if they need more information.  You should tell the police about any other independent evidence, such as medical reports.  Providing a 'victim personal statement' will also give you a chance to say how you have been affected by the crime, your fears of intimidation or concerns you may have about bail, and any additional support you may need from other agencies.  The CPS will consider these when making decisions about the case and where appropriate will also ensure the court is aware of the content of the personal statement.

Additional information may not indicate whether your abuser is guilty of the specific offence but it may help the CPS decide whether to continue the case or to ask for bail conditions to be set.

Will I have to go to court?

 Sometimes abusers may plead guilty to some but not all of the charges or to a less serious offence.  The CPS may agree to this if they think the court will pass a sentence that matches the seriousness of the offence.  If he pleads guilty you will not need to attend court.

You will only be called to court to give evidence if your abuser pleaded not guilty at a previous hearing.  Your attendance at court will partly depend on your willingness to give evidence as a witness for the prosecution.

If you do not wish to go to court as a witness, you will be asked to make a statement to say why.  However, even if you do not wish to proceed or ask to withdraw the complaint, the case may still go ahead and you may have to go to court to give evidence against your wishes.  Although the CPS will consider all the circumstances and any concerns about safety they can still decide to proceed if there is enough evidence and if it is in the public interest to do so.

If you are worried that you may be intimidated or threatened by your abuser or by his family before, at or after the court hearing, tell the police about your concerns.

What will happen at court?

The case may be heard in the Magistrates Court or the Crown Court, depending on the severity of the charge.  Your local police should keep you informed of the progress of the case through their Court Liaison Officer.  Once the court has heard the evidence, if the defendant is found guilty, they will usually adjourn for further reports from the Probation Service, before sentencing.

As a witness at court you can claim expenses from the CPS and they will try to make advance payments if you need this to return home.

What sentence is likely?

This depends on the seriousness of the offence and whether the defendant has previous convictions.  The sentence can range from a conditional discharge to a prison sentence.  If the abuser is your current partner, unless a custodial sentence is given, he is likely to be able to return home.

If you do not want this to happen because you will still be at risk, you will need to apply for a protection order under the civil law ideally before the final criminal court hearing.

What if he keeps pestering or threatening me or my family?

You should inform the police immediately and make another complaint.  Even if your abuser no longer lives with you he may continue to harass you either in person, by letter or telephone or through others.

 Under the Protection from Harassment Act your abuser can be arrested and prosecuted for this behaviour.  The procedure for going to court will be the same as outlined above.

If found guilty the court can fine or imprison and can also grant a restraining order against your abuser to prevent further harassment.  If this is broken the police can arrest immediately and any breach may incur a further fine or prison sentence.

Although the criminal law can offer you some protection, its main purpose is to deal with the offender.  However, not all forms of controlling or abusive behaviour can be dealt with under the criminal law.

If you do not feel safe to give evidence as a witness, or the case is not pursued, or prosecution is unlikely to result in a custodial sentence or safe outcome, you should think about applying for an injunction (court order) under the civil law.

Help available under the civil law

 You can apply for an injunction in the Magistrate's Court or the County Court under Part 4 of the Family Law Act 1996.  These are court orders that order someone to do something, or not to do something.  There are two main types of injunctions (also called protection orders):

• A non-molestation order
• An occupation order

Local Women's Aid services can advise you of solicitors with experience in family law and with applying for injunctions.

Who can apply?

In order for you ('the applicant') to apply for an order against someone else ('the respondent') under this Act you must be 'associated persons'.  This means that you must be related to each other in one of the following ways:

• You are or have been married to each other
• You are cohabitants or former cohabitants (opposite sex)
• You live or have lived in the same household, not just as employee, tenant, lodger or boarder
• You are relatives
• You have formally agreed to marry each other
• You are both the parents of the same child; or have had parental responsibility for that child
• You are both involved in the same family proceedings (e.g. divorce).

If you are a woman without children and have never lived with your abuser, you are therefore excluded from applying for orders under Part 4 of the Family Law Act.  Your main option would be to contact the police to take action under the Protection from Harassment Act.

There are also additional conditions on who can apply for occupation orders.

Will I have to pay?

If you are on income support, or have a very low income, or a small amount of savings you can usually get help from the Community Legal Services Fund to pay for a solicitor's advice and for legal proceedings.  This Fund exists to help people who meet certain eligibility rules and who cannot afford to pay for legal services.  This replaces the civil legal aid scheme.

What is a non-molestation order?

This is a court order to prevent your partner from using or threatening violence against you or your child, or from intimidating, harassing, or pestering you.  It can also have very specific instructions in it to suit your particular circumstances - for example it can order your abuser to stop telephoning you.

You can apply for a non-molestation order against someone if you are 'associated' with them.  A non-molestation order can be granted for six months or for an indefinite period.

What is an occupation order?

This is an order that regulates who can live in the family home.  If you do not feel safe to continue living with your partner, or you have left home because of violence but wish to return and exclude your abuser, you may want to apply for an occupation order.  You can also apply to restrict your abuser from the home and/or surrounding area.

Who can apply for an occupation order?

To apply for an occupation order you must be an 'associated person', but not all associated persons are eligible unless they meet further criteria.

If you are sole or joint tenant, or owner or co-owner of your home, or you are married to someone who is, then you can apply for an occupation order, which can be granted for 6 months.  This may be renewed if needed, or even granted for an indefinite period.

If you do not have an existing legal right to occupy the home as joint tenant or co-owner, then you can only apply for an occupation order if you are or have been married to the other person, or are a cohabitant or ex-cohabitant (defined as having lived as man and wife, so would not apply to same sex couples).  In these circumstances, occupation orders can be granted for a period of six months, but can be extended for longer depending on the status of the applicant.  Cohabitants who are not legally entitled to the home can only have occupation orders extended for up to one year.

How will the court decide?

The court has discretion when deciding whether to make an order, and has to look at all the circumstances of you, your partner and any children.  Whatever your situation, the court must look at your housing needs and housing resources; your financial resources; the likely effect of any order (or lack of order0 on the health, safety or well-being of any of you; your conduct in relation to each other.

If you are not legally entitled to occupy the property, then the court will also look at other factors; for example, how long it is since you lived together, and the length of time since the relationship ended.

The court also has to apply one further test called the 'balance of harm test'.  When looking at your needs, the needs of your children, and the needs of your abuser, the court has to decide who is likely to suffer the greatest harm if the order is not made.  As the court can only consider the harm caused to you or your children by the conduct of the respondent, then it is important that you or your solicitor provides the court with as much evidence as possible of all aspects of the harm caused by his abusive behaviour.

What evidence will I need for an injunction?

You will need to make a sworn statement to the court (called an affidavit in the county court) about the physical and emotional abuse you have experienced.  You will need to be as precise as possible about all the ways you have been hurt as well as describing the effects on both you and your children.  It will help if you keep a record, or can show independent evidence of any past incidents of violence or abuse.

How long will it take to get a court order?

If you are in immediate danger an application can be made to the court the same day for an 'ex parte' order to be made without your abuser being there.  In deciding whether or not to hear your application for this order 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, and whether your abuser is already avoiding being served a notice to appear before the court.

If the court grants an 'ex parte' order you will still have to return to court for a full hearing once he has been served with notice of the order.

What if we're already going to court over child contact or divorce?

If there are other family proceedings already in progress, or your partner makes an application at the same time (e.g. for a residence order or for contact with your child0 the court may wish to hear the whole case together.  But you can still be granted an emergency order while waiting for the full hearing.

The law on child contact is complex.  Recent changes to the law mean that the courts should consider whether a child has been harmed by witnessing the ill-treatment of another person, and in private law proceedings consider whether the child needs separate representation.  However at present there is nothing requiring the family courts to ensure that contact arrangements are safe for children.  If you have concerns about contact proceedings you should seek further advice from your solicitor or local Woman's Aid organisation.

Will the court be likely to grant an order?

This will depend on the evidence.  Sometimes the court will suggest that instead of an injunction, the respondent (abuser0 should make an undertaking (promise0 to the court not to pester or threaten you, for example.  This takes much less court time than arguing a case, so the courts are often keen for you to accept this.

But an undertaking cannot have a power of arrest attached and therefore offers less protection and is harder to enforce.  The court should not accept an undertaking where violence has already been used or threatened and you do not have to agree to accept one if you do not want to.

What if the court orders are broken?

At a full hearing, where violence has been used or threatened, the court must attach a 'power of arrest' to an order.  The injunction is then held on record at the police station, and the police can then arrest immediately if the order is broken.

The court can also attach a power of arrest in an emergency even if the man has not been given notice to appear in court, if you are likely to be at risk of harm otherwise.

If there is no power of arrest, and the order is then broken, you will have to apply to the court for a warrant for his arrest to be issued.

What happens when we go back to court?

The court has a number of options.  They can fine your abuser, impose a suspended sentence or commit to prison (although this is very rare), as well as making the injunction stronger by for example adding a power of arrest or extending it.

What happens if he still pesters me?

You will have to keep going back to court.  You can also ask the police to help record evidence of this and take action under the Protection from Harassment Act.  If you are a woman without children who has never lived with your abuser and cannot use the Family Law Act, this is your main option.  If your abuser is found guilty under the Protection from Harassment Act, then the criminal court will not only impose a sentence but can also issue a restraining order to stop further harassment.

Domestic Violence - Your Legal Rights