Applications under Part IV Family Law Act 1996 –
Non-molestation and occupation orders
Part IV of the Family Law Act 1996, which came into force on 1 October 1997, provides a comprehensive set of orders to afford protection for victims of domestic abuse. Practitioners who specialise in this area will be familiar with the procedure for applying for non-molestation and occupation orders, which due to the very nature of the subject matter often need to be made urgently and require a careful and considered approach given the vulnerable clients concerned.
A non-molestation order is an order prohibiting a person (the respondent) from molesting another person who is associated with the respondent or with a relevant child (FLA 1996, s 42(1)). The Domestic Violence Crime and Victims Act 2004 made breach of a non-molestation order a criminal offence.
An application for a non-molestation order can be made as either a stand-alone application or alongside an application for an occupation order, which is an order regulating the occupation of a property. The FLA 1996 allows for a range of applicants, depending on their precise circumstances, and the types of orders available depend on the category that the applicant falls under.
The criminalisation of a breach of a non-molestation order further emphasises the importance of the police response to domestic violence. In September 2013, the HM Inspectorate of Constabulary (HMIC) was commissioned by the Home Secretary to inspect the 43 police forces in England and Wales for their response to domestic violence and abuse. The report ‘Everyone's business: Improving the police response to domestic abuse, which was published in March 2014’ found that while most forces and police and crime commissioners said that domestic abuse was a priority for their areas, this wasn’t translated into an operational reality. The Inspectorate found that not all police leaders were ensuring that domestic abuse was a priority in their forces, and concluded that the overall police response to victims of domestic abuse was not good enough and that police forces need to take decisive action to rectify this. The report found
that there was a clear lack of consistency in the manner domestic abuse cases were dealt with by different forces, for example with inconsistent approaches to the issues of risk assessment and to how criminal justice sanctions were pursued. The report also concerningly found that in some forces there were gaps in capability and capacity of specialist units with unsustainable workloads, and a lack of specialist support and supervision.
The CPS have emphasised their view that domestic violence cases are particularly serious, and have issued a Public Consultation
on prosecuting cases of domestic violence. The consultation closes on 9 July 2014 and looks at the potential impact of domestic abuse on different groups to help prosecutors adopt a tailored approach taking into account their particular support needs. The draft guidance in the consultation also sets out the approach prosecutors are encouraged to consider when handling cases where the victim has indicated they are not willing to support or continue with a prosecution. The consultation
consolidates the two main existing guidance documents which will remain in place until a final policy is produced following the consultation.
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indicate that the conviction rate for domestic abuse prosecutions has reached the highest ever level, with 74.6% of those prosecuted for domestic violence in 2013-2014 convicted. Domestic violence now makes up more than ten per cent of Crown Prosecution Service's total casework.