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Leaving an Abusive Relationship with Children: What Are My Legal Options?

Leaving an abusive relationship can be distressing and extremely daunting, particularly when children are involved. Maguire Family Law are here to offer their advice and steps that you can take to protect yourself and your children if you are concerned about the implications of leaving the relationship.

Non-Molestation Order

There are several legal options available to protect yourself and your children from an abusive partner. Firstly, if you or your children are at immediate risk of harm, you must contact the police on 999. If for whatever reason the police are unable to provide you with longer-term help, you can apply to the Family Court for a protective Injunction called a Non-Molestation Order.

A non-molestation order aims to prevent a partner or a former partner from harming you or your children. It is not only partners who you can apply for a non-molestation order against, there are others (‘associated persons’).  However, for the purposes of this article, we will focus on partners or ex-partners.

In order for the court to grant a non-molestation order, it must consider all of the circumstances of the case including the need to secure the health (both mental and physical), safety and well-being of you as the applicant and any children. Essentially, the judge must determine whether the applicant (and/or any relevant children) are likely to suffer significant harm attributable to the conduct of the perpetrator if the Order is not made.

The court views the term, ‘harm’ as the actual occurrence (or threat of) of the following: 

  • physical violence
  • harassment
  • intimidation,
  • psychological and 
  • emotional abuse.

Most non-molestation orders also seek to prevent the perpetrator from contacting the applicant either via a telephone call, text message, via social media or from approaching the applicant in the street.

If the court grants a non-molestation order, the perpetrator of domestic abuse (the “respondent”) will be served with the non-molestation order itself, which will set out the terms that they are forbidden to break. To breach the terms contained within a non-molestation order is classed as a criminal offence. An initial or minor breach of a non-molestation order may result in the respondent being fined, whereas more serious or repeated breaches can result in a prison sentence of up to 5 years imprisonment. 

Occupation Order

As well as a non-molestation order, the courts also have powers to grant an occupation order. An occupation order, as the name suggests, regulates who can live in a home. Occupation orders can exclude the respondent from the home entirely, or they can exclude them from a defined area within the property. 

It is important to mention that the court will only grant occupation orders in very serious circumstances. This is because occupation orders have the power to exclude a person from the home in which they are legally entitled to live (for example, if they jointly or solely own a property; or, if they are named on the tenancy agreement). 

When deciding whether to grant an occupation order, the court will consider the balance of harm test. This means that the court will balance the harm which will be suffered by the applicant or any relevant child if the order is not made against that of the respondent if the order is made. So, if the court considers that the applicant will be at greater risk of harm if the order is not made, then it will make an order.

Similarly, if the court considers that the respondent would be at greater risk of harm by essentially being made homeless, or confined to certain parts of the house, then the court will not make an order. 

An occupation order (much like a non-molestation order) is an order of the court, which means that it is legally binding and enforceable. Powers of arrest can also be attached to occupation orders, and consequently, if the respondent breaches the order, they can be committed to prison, fined or given a suspended sentence of imprisonment. 

Children

When it comes to contact with the children, there are several options. If the perpetrator of domestic abuse has parental responsibility (for example, if they are named on the child/children’s birth certificate), this means that they should be included when making important decisions about the children’s lives, i.e., their education, religion, medical decisions.

The primary concern for the court when determining whether the children should have contact, be that direct contact or indirect contact (such as telephone calls, letters and cards), with the perpetrator of domestic abuse is what is in the child/children’s best interests. In most cases, the court will start from the premise that it is in the best interests of a child for them to have some level of contact with both parents, so long as it is safe for them to do so.  

1. Child Arrangements Order 

If you are unable to agree upon the content of a child arrangements agreement, then issuing children act proceedings may be the next stage for you to consider.

It may sometimes be the case that the perpetrator of domestic abuse issues an application for a child arrangements order. If you have concerns that your children may be at risk of harm from having either direct or indirect contact with the perpetrator, you must inform the court and cafcass (children and family court advisory and support service) of your concerns at the outset of the court proceedings. Cafcass will then advise the court in a letter as to what next steps they believe should be taken by the parties. For example, cafcass may advise the court to make a direction for the perpetrator of domestic abuse to attend a domestic abuse programme. What cafcass recommend differs on a case-by-case basis.  

It is important to note that it is unusual for the court to make an order that prevents one parent from spending any time at all with the children. Only in cases of very serious domestic abuse, whereby contact would detrimentally affect the health of a child/children, will a court order for there to be no contact.

2. Prohibited Steps Orders

In the event that you are concerned that the perpetrator will attempt to take the child/children from your care, school, nursery etc. you can apply to the court for a “prohibited steps order”.  A prohibited steps order prevents a party from performing a certain activity relating to children and also can prohibit them from exercising their parental responsibility. 

If the perpetrator has threatened to take the child/children from school or from your care, it may be appropriate to issue an urgent application to the court for a prohibited steps order. You can also make this application without giving notice to the perpetrator that you are issuing the application in some very serious cases. The court will then list the matter for an urgent hearing. The court will only grant an urgent application if there is strong evidence that the perpetrator would remove the children from your care, or if there is an imminent threat posed to the children. 

If the respondent removes the children from your care/school with the prohibited steps order in place, the court can make an order authorising an officer of the court take charge of a child to return them to the applicant’s care. An application may also be made for committal for contempt of court. 

3. Specific Issue Orders

Specific issue order applications are normally made when those with parental responsibility cannot agree on making a decision over a child/their children. This can involve disputes around the following: whether a child should change their name, the child’s education, and what school they should attend, the child’s religion, whether they should receive certain medical treatment, taking a child to permanently live abroad etc. 

The object of having a specific issue order is to decide the issue and not give the right of an exclusive decision to one parent or another. 

Any children law order such as the three mentioned above is legally binding. Therefore, if a parent (either the applicant or the respondent) breaks or breaches a children law order, then they will be in contempt of court which means that the court can fine you for breaching an order. Similarly, if the respondent breaches an order, you can apply to the court to enforce the order. For example, if the perpetrator does not hand a child over for contact, you can file an urgent application to the court to enforce the order to ensure that the child is returned to your care.

Please note that children act applications can only be made when the child or children in question are younger than the age of 16. 

What next?

For those reading this article who feel as though they are trapped in an abusive relationship or have friends or family that feel as though they cannot get out, please know that there is an abundance of help and support. There are several national charities which are listed below that can assist with taking the practical steps to leave an abusive relationship, as well as offering emotional support:

An experienced Family Law solicitor will also be able to help you put into place the help you need. It is possible that in cases where domestic violence is relevant you may be entitled to what used to be known as “legal aid” which can assist in relation to your legal fees.

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