High Court Challenge welcomed amidst Surge in Domestic Violence

Claire Edgar

02 July 2020

This Friday 3rd July, the High Court in Belfast will hear an emergency Judicial Review to determine whether the Court Service of Northern Ireland has acted lawfully by refusing to extend emergency Non-Molestation Orders put in place to protect victims of domestic abuse. It comes at a time when rates of domestic abuse have soared in Northern Ireland and charities have described “an explosion” of incidents in recent months.

Where a victim of domestic violence is at  risk of harm,  the Court can grant an emergency Non-Molestation Order to protect them.  This Order can be granted very quickly by the Court for a short period of time offering the victim immediate reassurance that they are protected from any further harm.  An Order can act as a significant deterrent to any perpetrator as a breach of the Order is a criminal offence.  The Family Homes & Domestic Violence (NI) Order 1998 is the legislation governing the making of Non-Molestation Orders and since its commencement, it has been vital in securing urgent legal protection for victims of domestic violence.

The question which the Court will determine on Friday is whether it is fair and proportionate for a Non-Molestation Order made on an emergency basis to be extended for the protection of the victim pending final Hearing of the case. It is understood that it will be argued that emergency Non-Molestation Orders should only be extended in extreme cases. This would mean that upon expiry of an emergency Order and before the case has been fully adjudicated upon, a victim of domestic abuse would lose the protection of an Order. They would only be able to secure this protection again if another significant incident of domestic violence occurred.  This undoubtedly leaves the victim vulnerable at a time when they are actively engaged in Court proceedings against the perpetrator of their abuse.

Our Partner Claire Edgar who is a member of the Domestic Violence Protection and Justice Working Group comments:

“This legal challenge has been brought at a time when the PSNI have reported a 15% increase in the number of reported domestic abuse crimes, the highest figure recorded in Northern Ireland the last 15 years. The government has been heavily criticised by women’s refuges and domestic abuse organisations for not providing any additional funding to Northern Ireland to assist with the rise of incidents during the Covid 19 lockdown. 

The Courts have been clear to highlight that emergency legal protection for victims of domestic violence has remained readily available and accessible throughout lockdown, however it could be argued that to refuse to extend a person’s emergency protection pending a final Hearing would deem the protection itself not fit for purpose and unnecessarily places victims at further risk of harm . A Non Molestation Order prohibits the perpetrator from doing something which they should not do anyway namely harass, molest and pester the victim or use or threaten violence against them.  It could further be argued that the risk of harm that a victim is required to evidence when making an emergency application in the first instance remains a risk when the Court is considering whether to extend this emergency protection.  As such, there should be no requirement to satisfy any further test of extreme circumstances when asking for this protection to be extended.   

It is clear that the primary purpose of the Family Homes & Domestic Violence (NI) Order 1998 is to protect victims of domestic abuse. It is widely accepted that domestic abuse is a pattern of behaviour over a period of time which affects not only the physical but also the mental health of the victim. We consider that the extension of the protective Non Molestation Orders pending a final hearing essential and await the outcome of this Judicial Review with interest.”