An injunction is a court order that a named person should or should not do something. Usually, in family law, people want injunctions against a husband, wife or partner. However, they applications for injunctions can also be against other family members, or associated persons. The person applying for the injunction is known as the applicant and the person who the order is against is known as the respondent. In order to apply for an injunction there has to be evidence that the respondent has:

• used or threatened violence against the applicant; and / or
• intimidated, harassed or pestered the applicant; and / or
• Coerced or controlled the applicant;

There are two basic types of injunction the court can make:

• A NON MOLESTATION ORDER – This is an order forbidding the respondent from being violent or threatening the applicant with violence. The order will usually say that at the respondent is forbidden from using or threatening violence, pestering, intimidating or harassing or encouraging a third party to do so on their behalf.

• AN OCCUPATION ORDER – This is an order that says the respondent must leave the home where the applicant lives, or allow the applicant to return there if they have already left, or is only allowed to occupy certain parts of the home. The duration of the order depends upon the circumstances of the case. The court will make different orders depending on what rights the applicant has to the property – for example whether the applicant is a lodger or an owner-occupier – and the relationship between applicant and the Respondent. It will also consider the needs of any children.

Any person who has experienced violence, abuse, threatening, coercive or controlling behaviour from another person can apply for an injunction as long as the respondent is an ‘associated person’. An associated person is usually either a relative or a person with whom the applicant has had a close personal relationship, whether or not they have been married or lived together. The applicant can apply for the order to protect themselves or on behalf of a child.

Often, it is helpful for a letter to be written to the respondent before court proceedings are started. This a ‘letter before action’. It sets out that the respondent must coo the behaviour immediately and if they do not, that an application will be made to Court for an injunction without further notice being given to them.

In urgent cases, where there has been violence or extreme behaviour and the applicant needs immediate protection, the application can be made without notice to the respondent. In such cases if the Court make the injunction, they will list another hearing a few days after the initial urgent hearing to allow the respondent to attend Court and confirm their position.

Procedure for applying for an Injunction

At the first appointment we will need to take a history of your relationship and details of recent incidents. We may ask you for your written authority, for example, to write to your doctor, the hospital or the police for a report.

Your application will then be prepared, along with a statement, setting out all the relevant facts of your case. If there are witnesses, we may also wish to see them to take statements. The application will then be taken by us to the court and a hearing date fixed. This is likely to be about a week ahead, unless your case is so urgent that a hearing the same day is required.

Once the application has been issued and a hearing date obtained, the documents (including your statement) have to be served personally, i.e handed to the respondent face to face. This will be done by a process server instructed by us. To enable us to carry this out efficiently, we will ask you for as much information as possible about the respondent, including a description, a photograph if possible and details about where and when they can be found. In most cases, the respondent must be served at least two days before the hearing.

Note: In the most severe cases, this procedure can be shortened by an application being made for an emergency order before the papers are served on the respondent. This is known as a ‘without notice’ application. The court will only make these orders in exceptional circumstances and your solicitor will advise you if it is appropriate in your case. Where this procedure is followed, the other person is not served with your application until after the order is made. There is nearly always a second hearing date, when the respondent is able to attend court.

Do I need to attend court and what happens when I do?

Yes, you must attend court. If the respondent does not come to court then, as long as she/he has been properly served with the papers, the case will go ahead without them. If the respondent does attend Court and has legal representation then it may, if you agree, be possible to reach agreement outside court.

What if I have been served with an injunction application / injunction order?

If you have been served with an application it is essential that you take urgent legal advice and prepare a defence to the application. A solicitor can help you prepare a statement saying whether you agree to the allegations, or whether you don’t agree. The solicitor will also represent you at the return hearing.

If you have been served with an order, it is essential that you do not do anything that may breach the conditions set out on the order. Breach of a Non Molestation Order is now a criminal offence and enforceable by the police and the Court. You could be sent to prison.

Undertakings

Sometimes, the issues can be resolved by one or both parties agreeing to give an undertaking. This is a serious promise to the court, which if breached, is treated as contempt of court and can carry a prison sentence. An undertaking would usually be in the same terms as the order being applied for, for example, the respondent might promise not to use or threaten violence against the applicant, or to leave your home within a fixed period of time. The court will only accept an undertaking if the judge is satisfied that it will protect all parties as well as, or better than, a court order.

Contested hearing

If no agreement can be reached a full hearing will take place. Both parties will both give evidence in court and be questioned on the details given in their statements. The judge will then decide whether to make any orders. In all cases, when deciding whether to make an Occupation Order, the court must consider all the circumstances of the case, including the housing needs and resources of the parties and any relevant children, the financial resources of the parties, the likely effect of an order or decision not to make an order on the health, safety or wellbeing of the parties and any relevant children and the conduct of the parties in relation to each other and otherwise. The court is also required to apply “a balance of harm test”, balancing the harm to the respondent of making the order, against the risk of harm to applicant of refusing to do so.

The court may also, on or after the making of an Occupation Order, impose obligations on either party as to the repair and maintenance of the property and payment of rent, mortgage or other outgoings.

What happens after the hearing?

The order made by the court must be personally served on the other person. A copy of the order will also be lodged with the police. If the other person did not attend court, the order is not usually effective until it has been served.

What happens if the respondent ignores the order?

If you are the applicant and the respondent has breached the terms of the order you should contact the police as soon as possible. If the respondent has breached a non-molestation order, this is a criminal offence and can lead to a prison sentence. If the police arrest the respondent, you must inform your solicitor of this.

What if the other person breaches an undertaking?

Someone who breaches an undertaking can be committed to prison. However, breach of an undertaking is not a criminal offence so the applicant must make an application to the court for the respondent’s committal.

February 2020

NOTE: The above is intended as a general overview for your information. It is NOT intended to replace proper legal advice. Each case is different and advice cannot be given without a proper analysis of your own circumstances.