Written and recorded by Safda Mahmood
Hello. Welcome, everybody. My stuff to my mood. I'm a solicitor on day Electra today that I'm going to be speaking to you about a particular area surrounding injunctions for personal protection on. But that is I'm going to be looking specifically at the position surrounding advising both associate ID Onda Also non associative persons eso This session over the course of the next 20 minutes is to data law on bites. I session as of May 2017 will give you an insight into somebody areas so and in this field. So we'll have not prepared a couple of slides for you and that the aim of this will be to take you through the various elements with a view to then looking at some discussion points and also some questions there after to test your understanding. So what I'm really looking at He's the position where you may rob, instructed to pursue on order on behalf of a client for purposes of personal protection and that this is where it may Robert, a case that one is looking at, Ah, an incident of domestic abuse. Now, for many of us, what you'll find is that you will be seeking such an order on this part. Four off the family away from 1996. This particular act, which consolidated a lot of the previous legislation, is that designed to assist principally associative persons, which will look at shortly under. The act itself is designed to provide protection to cases off really all forms of molestation on also in relation to orders surrounding occupation off the family home. And one of the issues about Theis act is that the orders themselves there's the normal station order, which is available, which covers prohibiting violence, threats of violence, harassing, pestering, interfering with in any any format and also the occupational, which regulates the family home with a that may be in the form of requiring somebody to vacate the property, for example, allowing somebody to return back into the property experience somebody from a perfect particular perimeter Amanda property, or maybe even regulating our occupation, tears of time and space. So, in terms of who lives there for a particular period or over over a set of the week, or perhaps even split in the house up so that one of the parties left there in some past the house and the other personal lives in the other part. Now, whichever order one is applying for under part for the family went from 96. It's very important to ensure that the persons concerned are what's called associative on associated persons are covered by Sections 62 on Day 63 off this act. So what I would suggest is when you're applying for these orders, the application form that you'll be completing is the form F l for a one on. You need to ensure that you bring your applicant within one of the 15 boxes on the form if you're unable to do so that it may Robert a case that they are not associative persons, and therefore you wouldn't in fact be applying and apart for off the family Lord off 96. So let's go through associative person to see who this would encompass verse in form of spouses on former spouses or both spouses and former South spices can play against each other. Then you got several partners so they can apply against each other. So if your client was a civil partner or indeed, a former civil partner with the other person that they associated with and then that can apply in that situation. Also called cavities or former cohabit ease can apply, so cohabit ease effectively. People who are there for living together as though they are married or in a civil partnership, therefore need to be living together most days of the week. That needs to be a level of intimacy and some level off mutual financial support. So as long as they are called happy tingle have been carpeting, then they will be able to come within the definition off associative person. Then you've also got people who have or are living in the same household, are them by being lodges of talents or the other person's employees, tenant, lodger or border and therefore, this effectively when it first came in in the acting back in 1997 was designed specifically to cover the position with same sex partners. But of course, since the 1997 that came into effect, we've had a Civil Partnership Act of 2000 for on or Saudi married Same Sex Couples Act and therefore effectively the books off those piece of legislation to have brought. But we'll have put same sex relationships almost in the same category as those people who are opposite sex. So that particular part of the act, which covers those people who live in the same house, sort of those imbibing border let largest tenants that indoor situation will be somewhat limited. Nine. Scope because of the advent off legislations for civil partnership need marriage. Same sex couples Act is concerned now. One of the other key applicants that would wish to be using apart forward family worked is that the relative and relatives are also covered by Section 62 63 off the family work in particular, relative as defined under Section 63. Subsection. One would cover, for example, the mother off the person who they're playing against the father, the stepmother, the stepfather, the Sunday daughter if they're applying against their parent in that situation the stepson, stepdaughter, grandmother, grandfather, granddaughter, grandson of a person against whom there seeking the order in that situation. Brothers, six sisters on course aunts, nephews, nieces will be up to apply in those situations. So there is quite a extensive list of people who would be seeking and may well be untouched, replied for these orders in some situations on that. There has been cases in the past week where people have had to apply against family members on the basis that on the basis that they are relatives and therefore they are applying for the pips of both normal station and you also occupation orders in does circumstances. The other category, that of associative person, is also those is those people who have agreed to marry one another. I understand in applying on the basis that they are were engaged on that, therefore day would be up to bring the action or so indoor circumstances. The other examples in relation to any child their bold errands off the child order may have parental responsibility. Also part is, the same family proceedings could apply so unusually. For example, you may have a situation where say you in Cape Savings, for example, it is possible for any party within those persons which may include, For example, a child acting through the Children's guardian represented by the solicitor may well be applying in their own right for a normal estacion order against the person they associated with, for example, so I could even apply in that situation now. There was a relatively newish category person who came to effect on the first of July 2000 and seven on that covers the person whereby they have or have had an intimate personal relationship with each other, which is, or was off significant duration so they seize the word intimate is not defined as such, but what is important is, if you want is applying under this than it is one whereby there must have been in and into my personal ation ship off significant duration. Now this was initially designed to cover situations whereby people may well be in a relationship, but they are not cohabiting and have not been cohabiting so, in fact, they haven't been living together. But if they are in a relationship, then of course in that situation they may wish to consider applying accordingly for the order. So that's where that comes in now, whether somebody is applying for, like, a normal station order or indeed additionally, two or alternatively, for an occupational, the first ground or heard of the need to cross is the fact that each shoulder associating so you can see the DeVos definitions and in fact, a full definition of associated persons you'll see is set out within section 62 63 of the family work on also, which is set out within the F L for the one which the application form that you would complete if you are seeking either or both of these orders night so far as the position with the criteria concerned for anomalous station order, the court considered a criterion. The Section 42 subsection five said it would consider order circumstances given, particularly regarding the need to safeguard and promote the health and welfare and safety of the party's insofar sick right here for the occupational. They're concerned the criteria do differ depending upon which section the person is applying under. So, for example, if the applying of the Section 33 off the family worked on the basis that the person has a right to occupy, departed and one would need to consider the criterion the Section 33 subsection seven of the act and Section 33 subsection six if appropriate. So the criteria does very dependent upon which section off the Act One is therefore plying under. Now, as I mentioned, the category of person that came to effect on the first of July 2007 namely somebody who is or has been in an intimate personal relationship with the other for significant duration. That provisional be it has coming over 10 years ago. In fact, in practice it is used not that often. One case where it was used is the case of JM Against sees it. This was a case handed down under on by the high court in the 27th of February 2014. In fact, on this was a case we're by. The respondent, in fact, was apply for discharge off the without notice injunction that had been made against him and in fact, the gay. So other than the fact e order itself had been made on the basis that the parties had been associating and that is, they had, in fact being together for several years in a situation where they had been in an intimate relationship which fell short of cohabitation but which didn't involve sexual liaison and in fact it was a child off the relationship. So that was a very useful illustration of whereby one was looking to use this part of the legislation for the purposes of seeking remedy under the basis that there were in fact associated persons with each other. Now, sometimes you find that people may well wish to apply for orders for personal protection. But in fact, the evidence suggests that supports the fact that they are not associate it with each other now. If that's the case, then what type of remedies are available? What? This is where you may wish to consider injunctions ancillary to other proceedings and one use which has been used quite ah ah, a lot recently off. The last several years has been whereby one would need to consider usage of the inherent jurisdiction off the high court and those of you who are, for example, involved in Cape seems. For example, you'll be aware that local authorities have been using this device in relation to seeking orders for child sexual exploitation protection self example cases whereby say, you've got a child who maybe is a teenager who has been sexually exploited that situation. Sometimes local authorities are seeking to invoke the inherent jurisdiction of the high court we're by. They are invited to court to utilize their research. Your category under Section 100 subsection subsection four. Did Children act to involved in hamah jurisdiction sourced of any neighbor them to make those orders, which otherwise would not be available through any other means? And there's been cases where local authorities, for example, have managed to use thes orders to be up to secure protection for Children who are victims off child sexual exploitation, for example, by the's order stand being used to prohibit any form of contact between that young person and the alleged perpetrator. Whether that conduct is direct contact were in direct contact and, of course, with Dean having jurisdiction route. If one was to breach such orders that were made. Of course, it entitles to court to then consider committal and therefore your in touch dealing utilized a provision under the contempt of Court Act of 1981. That's one way in which studies, in fact, utilized Thea other is the position surrounding the protection from harassment Act off 1997 and this is particularly useful when one wishes to seek protection for people who are not associating with each other on that. This is particularly used where say you've got problems would say neighbour disputes, for example, where neighbors have got difficulties and wonder needs to seek personal protection for their own benefit against the other. It could also be used where these problems between Sided landlord and on Orland Lady and the talent, for example, in those situations, you could also be used where you've got difficulties between employees and employers, for example, or work colleagues in that situation. It could also be used where you've got victims of sexual investment, for example, on. In fact, it could also be used where you've got other situations in kind of professional situations. Where, say, for example, you've got a social worker, for example, who's been cast in the circumstances from, say, somebody that they're working with indoor circumstances so it could be used in that manner for the protection from Harassment. Act over the years has also be used in situations where people are the victims of stalking, for example, so in those types of cases also under protection from harassment act itself provides that any person might apply course often injunction to restrain harassment and other forms of behaviour if it can be demonstrated that they have the respondent indoor circumstances having fucked breached the order now there's various forms of criminal offenses that available from the protection from Harassment Act, which city police may wish to them prosecute for So, for example. Firstly, they said, the offence of harassing itself, which includes alarming somebody of causing them distress on disk and even take the form of speech. For example, circumstances eso This is where it may be used like ST situations, where disputes over boundaries, abusive and threatening behaviour towards public officials, for example, on stalking in those types of situations. So the harassing itself is where somebody ought to know that if a result person in possession of the same information would then think that the conduct would amount to harassment. There's also some nasty offence under section two of the act. Then there's also section four of the act, which covers Theofanis of causing fear off violence. And this is where Theo effectively provision that if one could have been shown to know orginal that his conduct on these two occasions whereby they are causing someone to fear violence than that could be convicted off this offense, and with both of these, it is possible also for the court to grant restraining orders starts to restrain the defendant from further conduct, which amounts to harassment or fear of fires in those circumstances. And in fact, Section five capital lay off. The Domestic Violence Crime and Victims Act of 2004 provided that if a person was acquitted wife of these offenses, then this does not prohibit the court from still attaching a restraining order indoor circumstances sauce to provide some protection to the victim indoor circumstances. Now, even though the protection from Harassment Act from 19 seventies, utilized by the police and CPS to seek convictions and then alongside out to sea at for a restraining order to be attached, it's also possible to use the 1997 protection from harassment tacked to in fact seek damages and also an injunction. So this is where one can actually bring a tortious claim under this act, so that then one can get to prohibitory injunction granted and also damages could be awarded indoor circumstances. So this is where by damages could be water in the several action for actual or apprehended harassment, indoor circumstances and proceedings. Condition will be issued in the civil courts where the future and damages being granted for loss anxiety on bond, therefore, to cover some of some level of relief in that regard. Now there were some changes that came about as a result of the Protection Off Freedoms Act of 2012 brought into new offenses back in that $2012. Firstly, the offensive stalking itself on that the offence is one whereby there is a course of conduct, which is somebody in a situation where somebody is coming out stalking behavior. On that. There is also hurt the offense off stalking, causing favor of funds whereby in that situation, if somebody, for example, is, say, stalking somebody through various social networking sites, for example, and this is where it could be committed in that way. So this could be where there is a was of conduct that amounts to stalking and causes the victim to fear on at least two occasions that violence may be used against him in that situation and difference causing them alarm on distress in those circumstances. Now, one of the other provisions that I wanted to mention his deep position with other changes that came in a few years ago, particularly the domestic violence protection order, seasonal sort of domestic violence protection orders diesel again very useful devices which are used to protect not only people who are associated with each other but also those who may robin non associative, although principally teas, used your find in situations where it will be people in a domestic situation and therefore without associate ID. Now. The benefits of this domestic bonds protection order scheme, which came to effect by the crime and security after 2010 is that it allows the police than to provide protection for person following a domestic farm This instant on and domestic runs protection notice, which the police have authority to issue, can be used, which requires that person than to not have contact with the other person not to return to residents for periods up to 48 hours. But the domestic runs protection order, which the police can apply for, is 111 whereby the perpetrator can actually be prevented and from returning to the home or having any contact with the other person. Potentially for 28 days. And Section 24 of the crime and security after 2010 specifically relates to domestic violence protection notice on section 26. So 25 covers the position with Dee Domestic violence Protection notice Andi insofar a Section 27 is concerned of the exact opposite domestic violence protection order knife. These are breached in this kind of mount. A criminal offence which entitles then crown up seems to be brought. But the beauty about the domestic funds protection authorities on the domestic violence protection order is that these kind of alongside criminal proceedings or instead off under Compper vied immediate relief in those situations where this is warranted, unnecessary in the circumstances. Now one of the other provisions that I did wish to cover is that there has also been another offence which came into effect a few years ago. In fact, it came in on the 29th of December 2015 on this is the offensive controlling or caressing behavior in intimate or family relationship. Now, this was brought in by section 76 of the Serious Crime Act of 2015 and this is one way that too persons like it, a victim and a perpetrator must be connected and dirt. This is where you're looking at them being associate in that regard and This is where the conduct amounts to controlling the coercive behaviour, and it's got to be repeated continues. So if example safe, one party is subjecting the other two financial abuse, for example, so they are controlling them or caressing them in the manner in which they are using their finances, for example, And if they are in an intimate or family relationship in that regard, then this can be used to neighbor one offense than to be brought against that person to considers a huge amount of protection that's available for both associate ID on non associative persons. But of course, like many areas in law, you'll find that even though there is a lot of opportunity and protection available and remedies at the source always new things that need to be developed in line of changes in society's attitudes and behaviors and so forth. Thank you very much for listening, I hope has been a useful special for you on by Speak your next time. Thank you very much indeed. Bye for now.
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