5.2 Getting an Order of the Court/Injunction
The Court can make an Order against a person ordering that they shall not do certain things or that they must do certain things. The Order instructs the person guilty of violence or harassment not to continue to behave in this way.
Such Orders may include the following terms:-
(i) not to use or threaten violence against you
(ii) not to use or threaten violence against a child.
(iii) not to harass, pester or otherwise interfere with you
(iv) not to harass, pester or otherwise interfere with a child
(v) to require the person to leave a property and not to return
(vi) to require the person not to enter on to the property
(vii) to require the person not to enter in to a defined area.
(viii) to require that person to allow you to enter onto the property and not to further restrict your occupation.
These are the principal Orders which the Court may make in situations of harassment or violence. The purpose is to protect you in the best way available. What is appropriate protection will depend on the nature of the past behaviour complained of as well as your past relationship with the person who is violent – i.e. spouse or cohabitee and e.g. your respective rights in the property over which you seek an Order.
The Court has other powers in specific circumstances. These include the power to order the transfer of tenancies or, in certain circumstances, to order who should be responsible for the running costs of a property when one person is required to leave.
The spouse and the cohabitee are those best placed to seek all the possible powers of the Court. This means that if you are a spouse or a cohabitee it is likely that you will be able to obtain an Order relating to your personal protection and to staying in the house (depending on the behaviour complained of). However, your Solicitor will be able to advise you in more depth here as the rules regarding who can obtain which specific Order from the Court are somewhat detailed.
The door is, however, now open not only to spouses and cohabitees but also to most relatives and persons living in the same household to obtain personal protection Orders to prevent harassment and violence. Again, a Solicitor will confirm specifically whether you are legally eligible to seek the remedy as the rules governing who can apply are quite complicated.
You will probably need the help of a Solicitor to make the necessary application to the Court. The person against whom you want the Court to make an Order will have a chance to appear at the Court to have their say. You will have to make a sworn Statement setting out what has been happening and why you should have an Order to protect you.
Your Solicitor will represent you at the Court hearing. The Court will read your sworn Statement and will have a chance to listen both to you and to the other party. The Judge will then make a formal Order against your opponent if it appears appropriate to the Judge to do so. Several days may pass between making the Application and getting to Court for the hearing. In the meantime, your opponent will have to be “served” with your application and with notification of the date when the Court will hear the matter.
Any Order will have a limited time span. It is not usual for such Orders to be made to last for an indefinite period.
If a situation has arisen where you have suffered violence , intimidation or threats and you need protection from further aggressive behaviour urgently, then the Court may hear your case more quickly as an emergency. If your Solicitor considers it such an emergency situation then he/she may be able to get you to a Judge that same day. The Court will have to decide whether to make an Order for your protection based largely on what you say in your statement. The judge may find that you do need protection there and then and make an Order accordingly.
In these circumstances you may also get emergency funding from the Legal Services Commission which will cover this emergency application to the Court.
Such emergency Orders are usually short term – e.g. lasting for a week or so . The Judge will then hear the matter again when your opponent will have the chance to go to the Court and have their say.
Although the Order is in one sense only a piece of paper telling your opponent what he/she must do and not do, nevertheless it has the force of an Order of the Court. To have any legal effect it must be served on the opponent. He/she must know what the Court is saying and what it is that they are being told to do or refrain from doing.
Once that person knows about the Order then he/she should not then do anything which contravenes the terms of the Order. Any such contravention amounts to a breach of the Order.
Both the nature and number of any breaches of the Order will be relevant to what the Court then decides to do by way of punishment or enforcement.
Depending on the type of breach it may be possible to enforce the Order so as to make the person comply with it. This means that another application needs to be made to the Court for what are known as “committal proceedings”. A person in breach of certain types of Court Order can be penalised by the Court. The Court has the power to fine or imprison the person who has breached the Order. To encourage compliance in the future, it might e.g. impose a suspended imprisonment on the offender, which would be activated in the event of a further breach of the Order.
In many cases the Court will add a “power of arrest” to certain parts of an Order. This gives the Police the power to arrest someone and take them in to custody for certain behaviour which is breaching the Order.
You should contact the police immediately if a breach of the Order is happening or has just happened. Your Solicitor will advise you to have the telephone number of that Police Station to hand and of course the means of contacting the Police. When you phone the Police with a complaint they can arrest the person who is in breach of the particular terms of the Order to which the power of arrest was attached.
The person arrested will come back before the civil Court rather than the criminal Court – even though arrested by the Police – because the Police will (probably) not have charged him with any criminal offence – but will only have arrested him under the power imposed by the Court which made your Order. The Police should produce the person at Court the next day. When the matter comes back before the Court in this way the Judge will have to consider whether he/she is satisfied that a breach has occurred and if so, what the appropriate penalty would be in the particular facts of the case.
This procedure will have been triggered by you contacting the Police to tell them of the breach of the Order. You should also contact your own Solicitor as soon as possible as you will be required to attend Court to give evidence to the Judge about the behaviour you are complaining of namely, what the person has done to breach the Order.
Whether the person remains in custody depends on whether the judge believes that the particular breach of your Order warrants a custodial sentence.
The Police in your area will need to have lodged with them a copy of the Order which has the power of arrest attached. If they do not have a copy of the Order it is more difficult for them to act if phoned by you. Your Solicitor will sort out getting the copy Order to the Police and making sure that they know that the person has been properly served and is aware of the Order.