Domestic abuse, return to work and injunction orders during Covid-19

Lockdown has caused a significant increase in the number of incidents of domestic abuse being reported worldwide.  Throughout this article, I will refer to the person who has experienced domestic abuse as the survivor of domestic abuse or as the applicant.  I will use the term applicant because if a survivor needed to apply to the family court in England and Wales (where I practice law) the one applying for protection is known as the applicant.

Survivors of domestic abuse pre Covid-19, may have found that being able to go out to work gave them a break from the abuse they are being subjected to at home although it might not have stopped the abuse in electronic form.

Impact of staying at home

Being forced to stay at home all day and every day since lockdown in March 2020, has placed many individuals who are in an abusive relationship in a continuous environment of abuse. The perpetrator may have found it even easier to abuse their partner or spouse with more confidence knowing that their partner or spouse is confined to their home. In addition, lockdown could have empowered the perpetrator to control his partner or spouse with greater intensity and their access for help and support with the outside world.

Change from 1^st August 2020

From 1^st August 2020 the official guidance about returning to work will change.  The Prime Minister has stated: “We’re going to give employers more discretion and ask them to make decisions about how their staff can work safely”. When considering how staff can work safely, it is important to consider how lockdown might have effected one’s mental health, their safety against abuse and also for those who might have suffered a bereavement, sensitivity in relation to their return.

Despite the easing down of lockdown presenting a risk of increasing the spread of the virus, this might be a much needed step for those in an abusive relationship. Although many employers are still emphasising that their staff should remain working from home where possible which makes sense in terms of managing the virus and minimising the onset of the anticipated second phase of the spread and its consequences, being able  to leave home and go to work, might be what a survivor requires to escape the abuse, he/she is experiencing.

Working from home, even when it does not impact a person’s ability to perform their duties and services might not be appropriate for everyone.  Employers and HR departments should be reaching out to their staff sensitively to ascertain whether there is a need for any staff member to return to work in order to escape their abusive environment.  A survivor’s place of work might be the only place of safety for the survivor from the abuse they are suffering.

Review of employment rights for survivors of domestic abuse

On 9^th June 2020, the government launched its review of employment rights for survivors of domestic abuse.  It will cover:

1. A review of employment rights for survivors of domestic abuse.

It will consider what more could be done to help survivors in the workplace.

2. Seeking views on the availability of flexible working and unplanned leave for domestic abuse survivors
3. Part of the government’s wider approach to tackling domestic abuse

The Business Minister Paul Scully has stated:

“Domestic abuse may occur in the home, but its impact stretches into every aspect of survivors’ lives.

This review aims to give employers the confidence and knowledge to support workers affected by domestic abuse. It will build the evidence base for possible future action by government and employers, to ensure that survivors are properly supported at work.”

It is said that the aims of the review are to ensure survivors are provided the support they deserve within the workplace, whether that is an outlet for reporting abuse, financial assistance or as a source of emotional support.

Further information can be found at https://www.gov.uk/government/news/government-to-review-support-in-the-workplace-for-survivors-of-domestic-abuse

Written submissions will be accepted until 9 September 2020.

Domestic abuse is a criminal offence

Domestic abuse is a criminal offence.  If you are suffering from abuse you should report it to the police or obtain confidential advice from a specialist support group such as the National Domestic Abuse Helpline (0808 2000 247) or at www.nationaldahelpline.org.uk(run by Refuge).

IF YOU ARE IN IMMINENT RISK OF HARM – DIAL 999 FOR URGENT POLICE ASSISTANCE.

Help from the family (civil) court – a reminder

Forms of abuse

Domestic abuse takes many forms.  Examples involve physical and sexual violence and sexual offences which includes sexual offences against children, emotional, psychological and financial abuse, harassment and online abuse which includes revenge porn. Forced marriage and female genital mutilation are also examples of domestic abuse.  The consequences upon women can be very serious including suffering from mental, physical and emotional harm, transmission of sexually transmitted diseases, reproductive health issues and unplanned pregnancies.

Our family courts have a very wide interpretation of domestic abuse, despite there currently being no statutory definition of domestic abuse.  The family court is more likely to want to, and at times is directed to, help and prevent further abuse than ignore it or refuse to help.

Protection offered

If you are suffering from domestic abuse, threats or intimidation you can apply (as the applicant) for an injunction to help protect you.

There are two types of injunctions:

1. A non-molestation order
2. An occupation order

NON-MOLESTATION ORDERS

A non-molestation order prohibits, often a cohabiting partner or spouse, from using or threatening violence against you or your children.  It can also prohibit you from being intimidated, harassed or pestered by your partner or spouse.

The order you obtain will itself be prescriptive depending on the particular type of abuse you are being subjected to. The order will list what your partner or spouse (known as the respondent) is prohibited from doing.

The order can last for either a specified period of time or indefinitely. Breach of a non-molestation order is a criminal offence and the police can arrest someone who is in breach of an order.

Who can apply?

To apply for a non-molestation order you must be an associated person.

An associated person includes:

1. former and current spouses
2. civil partners and cohabitants
3. persons who have agreed to marry one another
4. relatives
5. people living in the same household
6. the parents of a child
7. and those who have been in intimate personal relationships of a significant duration.

OCCUPATION ORDERS

An occupation order states who can occupy your family home or regulate defined parts of it. It can also restrict your partner or spouse from entering the surrounding area of your home.

The order can impose obligations to pay the mortgage or rental payments and the maintenance of your home and council tax. The order usually lasts for 6 or 12 months and can be renewed.

Breach of an occupation order is not a criminal offence, but a power of arrest can be attached to the order which permits the police to arrest the respondent if in breach.

Who can apply?

Entitled applicants include:

1. former or current spouses
2. civil partners or cohabitants, or
3. people with a legal entitlement to occupy the property. This can include the owner or a tenant.

What is the procedure for an injunction order?

An application for an injunction order is made by completing a form (FL401) and preparing a witness statement which should provide full details of the abuse that has taken place and detail any imminent risk of harm.

An application can be made without notice to the perpetrator if your safety or the safety of any children is at risk. Applications are now being submitted to the court online.  It is good practice to help the courts to progress your application by:

1. Including the words injunction, non molestation, FL401, domestic violence or domestic abuse in the subject line of your email
2. Complete a draft order in advance using the court’s standard orders
3. Include your contact details in the body of your email if they are different from those on the application
4. Do not contact the court within a 3-hour period after submitting your application to give court staff time to progress it.

If an application is made without notice either because of the seriousness of the abuse that has happened and / or the risk of serious harm in the immediate future an order could be made in the absence of your partner or spouse.

Your partner or spouse will only be bound by the terms of the order made by the court, once he/she has been served with the order, your application and statement which is your evidence in support.  Pre Covid-19, in the majority of cases service was done by personal service although service could have taken place by email with the court’s permission. However, the rules on the method of service is changing from 3^rd August 2020.

Service of applications and orders – from 3 August 2020.

From August 3^rd 2020, there will be a temporary modification to the rules to expressly provide for the courts to direct another method of service of applications and orders made under Pt IV Family Law Act 1996 other than by personal service. See Pilot Practice Direction 36U.

This temporary modification will end on 3^rd May 2021. Therefore, it is quite likely that service electronically will be actively used and personal service will be dispensed with if the respondent was present at the time the order was made.

The Practice Guidance on Service of Injunction applications, orders and notification to the police can be found at https://www.judiciary.uk/wp-content/uploads/2020/07/Practice-Guidance-on-Service-of-Part-4-Family-Law-Act-1996-applications-28-july-2020.pdf

FINALLY YOUR EXIT – DON’T FORGET TO CAREFULLY PLAN

It is important for you to think about your exit plan. If you consider that there is a real risk that you or a dependent child will be subjected to serious harm – how would you obtain urgent help?

1. Have you spoken to a trustworthy friend or family member?
2. Where would you go?
3. Would you need to flee to a safe house outside of your borough – i.e. a women’s refuge?
4. Do you need legal advice and to obtain urgent court orders?
5. Have you made a note, and preferably not on your phone should there be a risk your phone might be confiscated, of:
   1. important telephone numbers such as:

Your GP

Women support group(s)

Your children’s health visitor

Your social worker

1. Any important log in details.
2. Placed important documents and items, which apply to you, in an easy accessible place to include:
   1. Your driving licence
   2. Passport(s)

• Recent bank statement(s)

1. Children red books
2. Medication – for yourself and your children
3. Money

• Any other important item(s) should there be a need for you and your children to leave in an emergency whereby you will have very little time to gather your belongings and also to think with a ‘clear head’.
• Made a plan on how you will actually leave?

Who will assist you confidentially?

When putting things together, you must do so carefully.  You would not want to risk members of your household becoming suspicious.  Therefore, only take the steps that are absolutely necessary. Your safety is extremely important and that of your children who are relying upon you.

REMEMBER – HELP IS AVAILABLE DESPITE THE PANDEMIC WE ARE CURRENTLY LIVING IN. 

DO NOT SUFFER IN SILENCE.

29 July 2020

If you require advice in relation to domestic abuse and also upon how to protect your children from harm or abduction, please contact Nazia Rashid in confidence on 020 7940 4000 or at nazia.rashid@anthonygold.co.uk.