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UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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Can you help. Got a client lived together 6 years 2 children

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Can you help. Got a client lived together 6 years 2 children 6 & 4. He has been violent and she has moved out into temporary accommodation. Need help on who is entitled to protection and what statues govern this process. Many thanks
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
Hi and thanks for your question.

She needs to apply for a non-molestation order NOW under the Family Law Act 1996 Part IV . She needs to apply within a day to two of the last incident of violence if at all possible. This is because a non-mol order is designed to be an emergency response to assist someone at further risk of abuse. The abuse can be actual violence or threats of violence. The non-mol order will state that (named person) is forbidden from unlawful violence or threats of violence to (named person). It must be served IN PERSON on the guy, then immediately after that, a copy lodged with the police. Breach of the order is a criminal offence which on conviction attracts custodial sentence of upto 2 years.

The application needs to be supported by a sworn statement, setting out the history and background, her family circumstances, and in great detail, the most recent incident, why she is now at immediate risk, and therefore why she needs a non-mol order now. She MUST report the last incident to the police, and include the crime reference number in her statement. This is because the family court will want to see that she has taken all reasonable steps herself and is not simply relying on the family court process. Plus in addition, the police may also decide to investigate a potential criminal offence. NB if the guy is now on police bail or court bail with a condition that he is not to approach her or to make any contact with her, then she may not qualify for a non-mol order, on the basis that she is already protected.

In addition to the non-mol order, she can also apply for an occupation order, if she wants to get back into the property, and get him out. An occupation order is an order that temporarily suspends someone's property rights. To make the order, the court has to be satisfied not only that the person's conduct has been bad, but also that the harm to the person (and their kids) (who is the victim of that behaviour) if they cannot return to the property is worse than the risk of harm that the person who remains in the property would suffer if he had to get out. So if she's now in grotty temp accomm, which has disrupted the kids, and maybe difficult for them to get to school/nursery, whereas he is maybe earning so could rent a bedsit or he could stay as a single guy with friends or family, then she has a good chance of getting an occupation order. But she may be too scared to go back, even with an occupation order.

The application for an occupation order is on the same form as for a non-molestation order, which is here:-

Her argument in favour of an occupation order if she wants one needs to be included in the statement in support. Put in lots of details about how the kids are being affected both by the violence even if they did not directly witness it - they will be aware of their mother's great distress, which will affect them - and by being forced out of their home.

The court will want to see a draft order from you. Here's an article which might help:

The intial application needs to be made ex parte if the mother feras the effect on the guy if he gets court papers without an order in place.

In my local family court, you get all the paperwork ready, then go to court having rung first to warn that an appln for an injunction is on its way, and a district judge will see you more or less straightaway, and decide then and there whether to grant the order. The case is then given a return date in about a week to 10 days time for the case to be reconsidered after the man has been served. So after the ex-parte hearing, the man is served, the police given a copy , and a statement of service filed at court.

After the hearing on the return date, the court usually confirms the original order (depends on how the ex-parte order was worded, or makes a fresh order for a further period of time. If a fresh order, then it has also has to be served, & lodged with the police, and statement of service filed at court.

I dunno where you're based but the best firm of process servers I have ever used are here:

If not local to you, I'm sure they can recommend a good local firm. They've served papers for me all over the world. They're calm and professional and they don't charge the earth.

Your client will qualify for legal aid - the perpetrator will not. It's rare for appln's for non-mols to be contested - but if it is contested, the ex-parte order will be extended until the date of the contested hearing.

You need to give your client details of women's aid, which is here:-

It's really important that she has their 24 hr free number which is
0808 2000 247. They can give valuable support eg go with her to the police station, provide emergency accommodation if needed, someone to talk to if she's distressed.

If possible, at same time as applying for non-mol order & occupation order, apply under the Children Act 1989 for a prohibited steps order (PSO), prohibiting the removal of the children by the man from the woman's care [except for the purpose of contact agreed in writing at least 24 hours in advance] or until further order of the court - but I think the legal aid rules may have changed now so that your client probably won't get get legal aid for an application under the Children Act unless she already has a non-mol order. So you could do that (if she has the stamina) as a separate court appln immediately after the ex-parte non-mol order has been made.

The PSO is another emergency order that must be served in person and lodged with the police after service. At the same time as applying for a PSO & on the same form, she also needs to appy for a residence order. PSO and residence order are on form C100. For the PSO, you also need to complete form C2 to apply for service to be expedited and reduced to 24 or 48 hours (normal service for Children Act application is 14 days)

Here are the Children Act forms you need:

I hope this helps - let me know if anything not clear or nay follow-up qs - otherwise, I wish you the best of luck.

I hate to specify - but please rate my answer ok, good or excellent - or I get nothing for my time!!! (so the website keeps all).

Thanks and best wishes...

UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience: Very experienced specialist family law solicitor, qualifed in 1994
UKfamsol and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
You have been so very helpful - a massive thank you. Can you assist me on a further question please. the circumstances when a power of arrest may be attached to an order under the FLA 1996 part iv; the advantages of attaching this type of sanction to an existing order and what would happen in the present circumstances if he failed to comply with an order without "Power of Arrest" santion attached to that order.

He is proving to be really difficult and said if she stops him seeing the children that he is going to make an application to teh court to see them - what would his options be that are available to him when making that app to see the children. Further explain the procedure. I look forward to hearing from you.
Expert:  UKfamsol replied 2 years ago.
Hello again

1. re power of arrest – it is no longer possible to attach a power of arrest to a non-mol order – that's because it is now a criminal offence to breach a non-molestation order. She MUST report any breaches to the police – they then take over & start the criminal process. Don't delay making your application to court for the non-molestation order because you are not sure about the draft order – the district judge will help you if it is not worded correctly. It's more important to get the application into court NOW. If there's too much of a delay, you risk the court saying there's no risk because there has not been any further violence or threat of violence.

It IS still possible to attach a power of arrest to an occupation order, so you should apply for this, because then the police will take any breaches seriously - again report ALL breaches to the police. Service on the man and filing at police station as set out above.

It is likely that the police will inform social services – where I live this is a standard protocol where there are children in a relationship where there has been violence – but that will help her, not him.

2. re kids – she's scared of him – you don't have to be. Stay calm. The welfare of the children is the MOST important factor here, not which parent shouts loudest. The courts take very seriously indeed the effect of violence on kids, even if they do not directly witness it. Regarding the court forms C100 and C2 that I referred to above – I forgot to add that she will also need to file C1A., which is necessary where there has been any domestic abuse. Here's the form:-

You will see that the form requires her to list all the separate incidents, the effects on the kids, and what action has been taken.

If the welfare of the kids have been affected by this man's violence to their mother, the court might order a section 7 report by Cafcass and /or order that his contact should be supervised only eg at a contact centre etc. - or even be indirect only eg via letters/cards/ tel calls.

If she's frightened of him, & the kids are, then it may be appropriate to stop contact until the court has looked into the situation in detail. The LAST thing she should do is be bullied by him into agreeing to some level of contact that she does not feel is right for the kids. Let him make his application to court if he wants. He won't get legal aid. She should make her own application on C100, C2 & C1A as soon as possible.

But keep a record of all his bullying tactics – that's more evidence in support of her application for a non-molestation order.

His options – without applying to court – are to reach agreement with her. BUT SHE MUST NOT BE BULLIED.

From what you say, I think she AND the kids could both be in danger if she is bullied to agree to inappropriate contact.

Given his violence, I do not think any mediation service would agree to do mediation, but here's where to find a local family mediation service:-

In my view, where there has been violence, mediation is NOT appropriate. If the violence has been so bad that she has left her home with the kids, then this is a case where the dad's contact with the kids should be decided by the court. It's important she realises how bad the violence is for the kids and the disruption to them that he has caused, and not something normal that happens between adults and doesn't affect the kids. Women's aid can really help here. Make sure she has that tel no to speak to someone who can helo her talk through all that has happened to her.

This is a really serious case, and I think she should get face-to-face legal advice from a specialist qualified family solicitor if at all possible. Here's where to find one:

But get the application for a non-molestation order into court QUICKLY. The case can always be transferred to a qualified solicitor later.

I hope this helps and I wish you the best of luck.

Customer: replied 2 years ago.

Good afternoon


I have just got a couple more questions if poss.

got a client 18 month old. He has spent 3 months in a drug rehabiltation unit and is currently on bail awaiting a criminal trial for drugs and motoring offence. M (Melissa) was referrend to Social Services by her health vistor following concerns her daughter was failing to thrive and the family home is chaotic. The HV has to Melissa to adopt a rountine for daughter and that SS are going to carry out a "Core Assesment" under S47 Children Act 1989. Firstly what is a core assessment will cosider & how is it carried out & the process of the investigation the SS will have undertaken to reach stage?


Secondly, how would i explain the nature and purpose of a child protection conference and idenitfy the likey particpants.


Thirdly, explain a interim case order and the grounds which must be established before the court would make an intermin order and the procedure.


Lastly, What is a Care ~Order?

The relevant steps to be taken when applying for a care order and

the threshold cirteria for a care order.



I really appreciate you help and asisstance in the above and If you can help me I will definately give you a bonus. All your advice so far has been more than helpful and I have no hesitation in rating high.


Expert:  UKfamsol replied 2 years ago.

Thanks for your kind remarks which I am grateful for, but I feel that these very detailed questions needs to be posted as a new question, as you are now talking about an entirely different client and an entirely different area of law, and not just a follow-on question.


I will also alert a colleague here who specialises in this area of law so that she can answer your new question as soon as you have posted it.

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