25th Mar 2020

Domestic violence, occupation orders and Coronavirus

By Vanessa Asante

As the Coronavirus Pandemic marches on, most will be feeling the effect of the raft of measures introduced by Prime Minister Boris Johnson aimed at tackling the virus.

Most notably, the public have been asked to isolate themselves at home. It is naturally expected that people will suffer cabin fever and grow increasingly restless as they spend more time sharing a confined space with their partners and perhaps children.

Concern has, however, been particularly raised for the circumstances of the number of women and men who suffer domestic violence from their partners in the home in what is already a tense and anxious time. Matters could be made worse, as the novelty of the UK lockdown is replaced by the long, hard realities.

Anita Bhatia, the Deputy Executive Director of United Nations Women commented that “the very technique we are using to protect people from the virus can perversely impact victims of domestic violence…while we absolutely support the need to follow these measures of social distancing and isolation, we also recognise that it provides an opportunity for abusers to unleash more violence.”

There have been anecdotal reports that some abusers may use this as an opportunity to further socially isolate their victims, whilst others fear being excluded and locked out from the home altogether should they start showing even mild symptoms of the virus.

Those facing domestic abuse in the home can consider applying to the court for an occupation order under the Family Law Act 1996. An occupation order can:

  • Allow the victim to remain in the home or re-enter the home if he/she has been excluded;
  • Exclude the perpetrator from the home and in some cases apply an exclusion zone so that, if asked to leave, the perpetrator cannot come within a certain distance of the home;
  • Allow both parties to remain in the home, but regulate its use, for example to exclude one or both parties from certain parts of the house and regulate the times that each of them can use communal areas;
  • Include a power of arrest, so that if the order is breached, the police have the power to arrest the perpetrator;
  • Include an order that the perpetrator continue to pay the rent, mortgage or other outgoings for the home.

In principle, you are able to apply if you are an owner or a tenant of the property, or have an interest in it, or if you are or have been the spouse, civil partner or cohabitee of the person who owns or rents or has an interest in the property.

The factors considered by the court when deciding whether to make an order will differ depending on the parties’ relationship to the property and to each other as mentioned above. These factors include, but are not limited to:

  • The housing needs and housing resources of each of the parties and of any relevant child;
  • The financial resources of each of the parties;
  • The likely effect of any order, or of any decision by the court not to exercise its powers to make an order, on the health, safety or well-being of the parties and of any relevant child; and
  • The conduct of the parties in relation to each other and otherwise.

The court will also apply the ‘balance of harm’ test to assess whether to make an order. They will consider on the one hand, whether the applicant or any relevant child is likely to suffer significant harm from the respondent’s conduct if an order is not made, and on the other hand the court will also consider whether the respondent is likely to suffer harm which is as great as, or greater than, the harm suffered by the applicant from the respondent’s conduct.

In some circumstances, an application for an occupation order can be made without notice to the respondent. If that is the case, the court will list a second hearing in order for the respondent who has been excluded from the home to contest the order.

In many cases, a non-molestation order can also be applied for alongside an occupation order and that prohibits the respondent from using and threatening violence against the applicant or child, and can prohibit the respondent from harassing/ contacting the applicant.

It should be made clear that the courts generally do not make occupation orders lightly, as they consider that excluding a person from their home is a serious step, particularly if this is done without notice to them. An automatic power of arrest is also attached to them, underlining their severity.

A challenge that may be faced in these unprecedented circumstances, is demonstrating that the respondent has somewhere else that they can stay or has the resources to take up temporary alternate accommodation. This is a matter which should be given careful thought in advance of the application. However, in circumstances where there is a significant risk to the safety of the applicant and any children, then the court can and may very well make these orders. Occupation orders are temporary orders and often last for a period of 6 months, with the possibility of extension for a further 6 months. In some limited circumstances they can last longer.

Non molestation orders, whilst still including an automatic power of arrest, are not considered as draconian and it may therefore be easier to persuade a court that one of these should be put in place.  Whilst not solving the issue of you and your partner having to remain under the same roof, one of these orders may offer some respite by way of some level of regulation of your living situation.  It is understood that in many cases this may not be sufficient.

Rest assured that the courts are conducting telephone hearings and are using video conferencing facilities so there is no need to attend court in person if you are self isolating. Barristers and family lawyers like FLiP are working with the courts on a daily basis using these remote working facilities. We can advise you on the best way forward to protect yourself and your family.

At a time like this it can be difficult to access help and support. However you can contact us by email, or telephone if you would like to discuss your options and explore any practical considerations with us. We are well-equipped to take prompt protective steps if necessary. We are at present very much able to access the court through remote systems and are able to keep in close communication with clients in a similar manner. In emergency situations, however, the police should always still be your first port of call.

For information or advice regarding any of the topics discussed in this blog or for independent legal advice, please contact our specialist family and divorce lawyers at Family Law in Partnership. In the first instance, please contact director Helen Greenfield (E: hg@flip.co.uk) or associate Vanessa Asante (E: va@flip.co.uk) or call either Helen or Vanessa on 020 7420 5000 if it is safe to do so.