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...
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