In cases of domestic abuse it may be necessary to arrange for urgent protection. Also, once any Order has been obtained it will be necessary to enforce it.
Orders without notice to the other party
It is possible to make an application to the Court without notice where there is a risk of serious harm. This could arise where the victim is unable to move away from a safe place where they are staying such as a refuge if the other party is given notice of the hearing.
There has to be a risk of significant harm to the applicant or a relevant child or the applicant will be deterred or prevented from making the application if not made straight away. If the other party is avoiding being served with court papers this can be taken into account.
As the Order would have a drastic effect on the other party the Court will need to be given very good reason.
How long can a Order made without notice last?
The Order made by the Court will be given a specific time of expiry. Normally this will not be more than 14 days; there will also be a date for a further hearing. The Order will also state that the Respondent does not have wait for the return day to make an application to set aside or vary the Order. If an application of this nature is made, this will occur as a matter of urgency.
Enforcement of a Non Molestation Order
It is now a criminal offence not to comply with a Non Molestation Order. The person subject to the Order cannot be convicted if they are not aware of it. It will be important for those conducting the matter to ensure that the Order is served on the perpetrator.
If convicted for breach of a Non Molestation Order a conviction will render the perpetrator liable to imprisonment up to 5 years or a fine or both. If a summary conviction is made imprisonment is up to 12 months or alternatively a fine or both.
Since criminal proceedings are involved enforcement can be initiated by the police who will then refer the matter to the Crown Prosecution Service.
The victim may herself enforce a Non Molestation Order by applying to the Court for a warrant of arrest.
The pros and cons of the approach involving the police or making the application is something to discuss with your Solicitor.
Enforcement of Occupation Orders
In cases where an Occupation Order has been made and the Court believes that the Respondent has used or threatened violence against the applicant or a relevant child a power of arrest can be attached to the Order. This allows for the perpetrator to be arrested and taken back to the Court where the Order was made. The Order will be delivered to the local police station.
Where a power of arrest is attached to parts of the Order the police officer may arrest without a warrant someone who he has reasonable cause for suspecting to be in breach. Where such an arrest is made then the perpetrator has to be brought before the Court within 24 hours. A Sunday, Good Friday or Christmas Day is not included in calculating 24 hours.
In a case of this nature the Court will treat the matter as contempt of court. Custody is possible but not automatic. There may be a fine or a suspended sentence. The maximum sentence will be 2 years.
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