What should I expect when I apply for a non-molestation order?
The process for applying for a Non-Molestation Order (injunction) in the Family Court under Part IV of the Family Law Act 1996 with the assistance of Family Law Solicitors is pretty straight forward although the applicant themselves can find the whole experience daunting, as they are seeking protection from someone who has abused them. This blog will deal with what happens when the matter runs to a final hearing.
The application form, which is known by the number FL401, has a dual purpose and can be used to apply for a Non-Molestation Order, an Occupation Order, or both Orders if needed. If it is a Non-Molestation Order that is being applied for, the FL401 should be supported by a statement setting out what has happened and why the protection of the Court is needed. Most Family Law Solicitors will always keep the phrase ‘first, worst and last” in mind. Although injunctions can be applied for after one incident, in most cases the abuse has been ongoing. So we would mention the very first incident that occurred to show when the abuse started, the worst incident to show the level of abuse, and the final incident to show when the abuse ended – although it is not uncommon for there to be further incidents between the statement being prepared and signed and the matter reaching the first hearing. Other incidents can also be mentioned but it is not essential to mention every one as a more detailed statement can be provided later if necessary, however for any incident mentioned it is important to provide as much detail as possible, for example, date, time, where, what led up to the incident, what happened during the incident and what happened afterwards. Your Local Family Solicitors will also send to the Court a draft of the Order that is sought.
Once the application, statement and draft order have been sent to the Court, a Judge will assess the urgency and either list the matter for urgent hearing without the respondent (ie the person against whom the order is sought) knowing about it, which is known as an ex-parte hearing or list the matter for hearing in a few days’ time to allow the respondent to be served by either a process server (if the applicant is represented by solicitors) or the Court Bailiff (if the applicant acts in person, ie does not have a solicitor).
So what happens at the first hearing? Your Lancaster Family Solicitors would never leave a Client feeling any more vulnerable than what they do already and will arrange to meet the Client on the day of the Court hearing at their office and escort them to Court. If the case is being heard ex-parte then the Judge will ask the legal representative any questions that he/she needs answering before making a decision as to whether an Order should be made without the respondent knowing about it. Another reason to make sure the Statement is as good as it can be! If the Court makes an order in the absence of the respondent, the respondent will need to be served with all the papers and the matter will be listed for the respondent to attend.
Where the respondent has been served and is expected to attend then a prior request can be made for what is known as ‘special measures’ for example having a conference room booked for discussions or having a screen placed in the courtroom so that the respondent cannot see the applicant and try to intimidate them. If the respondent is not represented and the applicant is, then the applicant’s solicitor will be expected to speak to the respondent to explain the process and try and ascertain whether they will admit to any of the allegations in the statement. At MG Legal Solicitors in Lancaster we are quite prepared for one of two things to happen, either:- (1) the respondent will appear all meek and mild as if to say “how can you possibly believe I could be capable of such things” or (2) their attitude will be such that it is clear they do not want to speak to the applicant’s representative and it is advisable to walk away. The second example also being the kind of individual who shows no respect for the Court and who refers to the Judge as ‘yourroner’. Bit of a giveaway that they are used to the criminal court…..!
As the hearing will have been listed quickly, the Judge will normally ask the respondent if he/she has had the opportunity to seek legal advice and if not, do they want to. The matter will be adjourned if they do. If the respondent wants to proceed he/she will be asked whether there is any acceptance of the allegations. Even if there is acceptance of only one allegation, the Judge can consider making an order. Sometimes with a few well worded questions from the Judge the respondent accidentally admits to certain behaviour anyway particularly if they suddenly go off on a rant and do not realise what they are saying!
If the respondent does not make any admissions, the Judge will still need to decide whether there should be an injunction whilst further investigation is made. If an order is made, the respondent is normally asked to wait at Court until the order is typed and he is then usually served by the applicant’s representative who will then prepare a statement of service for the Court.
If further investigation is needed, the Judge will listen to requests for the filing of any relevant reports, including Police reports (‘disclosure’) and witness statements and will list the matter for a final hearing.
At the final hearing, special measures can be put in place should the applicant require them, including shielding the applicant with screens whilst he/she is in the witness box to prevent stares, smirks and threatening looks from the respondent. Both parties will give evidence and will be cross-examined. The Court will not allow the respondent to cross-examine the applicant personally if he/she is not represented and the Judge will have asked the respondent for a list of questions that he/she wants to ask. The Judge may also have questions to ask.
After hearing the oral evidence of the parties, and having considered the paper evidence, the Judge will give a formal Judgment and will deal with each allegation in turn, commenting on what was thought of each party’s evidence and stating whether the Court finds that the incident happened or not.
If no findings are made, there will be no order. If findings are made, the Judge will decide the terms of the order and how long it should stay in force for. The guidance is currently 12 months but if the allegations that have been proven were particularly serious, the Judge can make the Order for longer – or indeed for less than a year if the incidents were more ‘low level’. Again the respondent will be served with any order whilst at Court.
For more advice about Non-Molestation Orders and other orders for protection contact our Family Solicitors to discuss your situation via firstname.lastname@example.org or by calling 01524 581306.