With domestic abuse charities reporting a significant increase in calls during the current coronavirus crisis, Fathema Khanom, Solicitor in the Family Team at Edwards Duthie Shamash, explores the legal remedies that are available to victims of domestic abuse and considers how the family courts are dealing with domestic abuse cases during the current lockdown. 

The Government’s stay at home advice in response to the COVID-19 pandemic can create new challenges for people experiencing domestic abuse.

The UK’s largest domestic abuse charity, Refuge has reported a 700% increase in calls to its helpline in a single day since we have been in lockdown.  It was reported by the Founder of Counting Dead Women that 16 domestic abuse killings have taken place between 23 March to 12 April 2020 and the number of women that have been killed by men over this three week period coinciding with the lockdown is twice the average for this time of year.

We understand that when you are living in a situation of domestic abuse, the sense of isolation is very strong and this can be taken advantage of by perpetrators of abuse.  The current pandemic and lockdown has exaggerated that sense of isolation, leaving many victims feeling trapped in an increasingly volatile situation.  However, although the process of obtaining protection from the courts may seem complicated, there is no reason why this process should not be as swift and effective as always.

Protective orders

There are various types of orders which can be obtained to protect individuals. The most common type of protective orders are Non Molestation and Occupation Orders.

The person applying for these orders (often called “injunctions”) is known as the Applicant. The Respondent is the person against whom the application is made.

The orders obtained can prevent the respondent from assaulting, molesting, threatening or harassing the applicant. An Occupation Order can remove the respondent from the home and prevent them from coming within a specified distance of the home.  Orders can also be obtained which protect the children of the family in a similar way.

Family court guidance for obtaining protective orders during Covid 19

The government guidance explains that an injunction must be applied for by email or post, rather than in person.

The guidance can be found here: www.gov.uk/guidance/applying-for-a-domestic-violence-family-law-act-injunction-for-unrepresented-applicants.

The application process

• The applicant can apply online using RCJ Advice’s CourtNav service.
• The applicant can apply by post by filling in the application form (form FL401).
• A copy of the form can be sent to the applicant via email by contacting an open court.
• The applicant can submit the form in person in selected open family courts.
• The applicant will need to complete a witness statement in support of any application.
• Depending upon the circumstances of the case, an application can be made to the Court on a ‘Without Notice’ basis. This means an emergency application to the Court for immediate protection without giving the respondent prior notice of the application.
• There is no fee for this application.

The hearing

The court will contact the applicant via email about the hearing arrangements.

Most injunction hearings are currently taking place by telephone. The court staff will arrange a telephone conference and notify the applicant and the respondent unless the hearing is proceeding on a “without notice” basis.

In some circumstances, the Judge may make a decision without a hearing; this is called dealing with the application ‘on paper’.

If the injunction is granted, it will only come into effect once it has been officially served on the respondent. Once the respondent has received the order, the court will provide a copy to the local police force.

The government guidance for emergency injunctions relies solely on the premise that victims of domestic abuse will have access to internet, have an email account, access to a phone and the naïve presumption that a safe place can be located indoors to complete the forms, draft statements correctly and attend telephone hearings.

The guidance requests that an applicant should inform the court via email if the victim is unable to facilitate a telephone or video hearing due to the respondent residing in the same property for example.

Nevertheless, what thought has been given to those who face language barriers, who have disabilities and for whom even access to this information would be a colossal task? At present, we do not know what alternative measures have been put in place and what consideration has been given to those in the above situations.

The Law Society President Simon Davis stresses the additional difficulties for “those who do not qualify for legal aid and cannot afford a solicitor, navigating a telephone hearing unrepresented can prove even more complex than the usual court process”.

During this current crisis, the necessity for a victim of domestic abuse to access justice is paramount. We do not want to deter the victims of abuse from speaking out or accessing help due to their limited finances.  As a family law practitioner, I believe the first change that should be made to the current system is the eradication of the means test requirement for legal aid.  Legal aid should be available for all domestic abuse cases!   The time for change and reform is now.

Having said this, it is likely that most victims of domestic abuse will qualify for legal aid. Making an application for a non-molestation order or an occupation order really needs the assistance of a solicitor more now than ever.

At Edwards Duthie Shamash we will continue to fight for access to justice for everyone. If you or someone you know is suffering from domestic abuse, please do not hesitate to telephone the family team on 0208 514 9000 or e-mail.  We will provide you with practical help, signpost you to the necessary services, take any appropriate court action and do everything in our power as family lawyers to ensure that you or a loved one are protected.