The Family Homes and Domestic Violence (Northern Ireland) Order 1998 (N.I. 6)

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Northern Ireland Orders in Council

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Leave of court required for applications by children under 16
     21. - (1) A child under the age of 16 may not apply for an occupation order or a non-molestation order except with the leave of the court.

    (2) The court may grant leave for the purposes of paragraph (1) only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.

Evidence of agreement to marry
     22. - (1) Subject to paragraph (2), the court shall not make an order under Article 11 or 20 by virtue of Article 3(3)(e) unless there is produced to it evidence in writing of the existence of the agreement to marry.

    (2) Paragraph (1) does not apply if the court is satisfied that the agreement to marry was evidenced by -

Ex parte orders
23. - (1) The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

(2) In determining whether to exercise its powers under paragraph (1), the court shall have regard to all the circumstances including -

(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately,

(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately, and

(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved -

    (3) If the court makes an order by virtue of paragraph (1), it shall afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.

    (4) If, at a full hearing, the court makes an occupation order ("the full order"), then for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant Article shall apply as if the period for which the full order will have effect began on the date on which the initial order first had effect.

    (5) In this Article -

"full hearing" means a hearing of which notice has been given to all the parties in accordance with rules of court;

"initial order" means an occupation order made by virtue of paragraph (1); and

"relevant Article" means Article 11(10), 13(10), 14(10), 15(6) or 16(6).

Variation and discharge of orders
24. - (1) An occupation order or non-molestation order may be varied or discharged by the court on an application by -

(a) the respondent, or

(b) the person on whose application the order was made.

(2) In the case of a non-molestation order made by virtue of Article 20(2)(b), the order may be varied or discharged by the court even though no such application has been made.

(3) If a spouse's matrimonial home rights are a charge on the estate of the other spouse or of trustees for the other spouse, an order under Article 11 against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge.

Enforcement
Offences
25. Any person who contravenes -

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a term not exceeding three months or to both.

Power of arrest without warrant
26. In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (arrest without warrant for arrestable offences), for the sub-paragraph (g) inserted by Article 4(3) of the Protection from Harassment (Northern Ireland) Order 1997 there shall be substituted the following sub-paragraphs -

Further powers of court of summary jurisdiction
27. - (1) Paragraphs (3) to (8) of Article 112 of the Magistrates' Courts (Northern Ireland) Order 1981 (enforcement of orders other than for the payment of money) apply for the purpose of the enforcement of -

(a) a non-molestation order;

(b) an occupation order;

(c) an order under Article 18;

(d) an exclusion requirement included by virtue of Article 57A of the Children (Northern Ireland) Order 1995 in an interim care order under Article 57 of that Order; or

(e) an exclusion requirement included by virtue of Article 63A of the Children (Northern Ireland) Order 1995 in an emergency protection order under Article 63 of that Order,

as those paragraphs apply in relation to an order mentioned in paragraph (2) of Article 112.

(2) A court of summary jurisdiction has the same power to make a hospital order or guardianship order under Article 44 of the Mental Health (Northern Ireland) Order 1986 or an interim hospital order under Article 45 of that Order in the case of a person who is suffering from mental illness or severe mental impairment who could otherwise be committed to custody for breach of an order or requirement mentioned in paragraph (1) as a court of summary jurisdiction has under those Articles in the case of a person convicted of an offence punishable on summary conviction with imprisonment.

Orders under the Children (Northern Ireland) Order 1995
Residence and contact orders
28. After Article 12 of the Children (Northern Ireland) Order 1995 (residence orders and parental responsibility) there shall be inserted the following Article -

" Residence and contact orders and domestic violence

12A.

- (1) Where a court is considering whether to make a residence or contact order in favour of a prohibited person, the court shall consider whether the child has suffered or is at risk of suffering any harm through seeing or hearing ill-treatment of another person by the prohibited person.

(2) A person is a prohibited person for the purposes of paragraph (1) if either he is or the court considers that he should be prohibited by a non-molestation order under the Family Homes and Domestic Violence (Northern Ireland) Order 1997 from molesting another person.

(3) Paragraph (1) is without prejudice to Article 3.".

Interim care orders and emergency protection orders
29. - (1) In Article 2(2) of the Children (Northern Ireland) Order 1995 (interpretation), after the definition of "disabled" there shall be inserted the following definition -

" "dwelling-house" includes -

and any yard, garden, garage or outhouse belonging to it and occupied with it;".

(2) After Article 57 of that Order there shall be inserted the following Article -

" Power to include exclusion requirement in interim care order

57A.

- (1) Where -

the court may include an exclusion requirement in the interim care order.

(2) The conditions are -

(3) For the purposes of this Article an exclusion requirement is any one or more of the following -

    (4) The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order.

    (5) Any period specified for the purposes of paragraph (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order.

    (6) If, while an interim care order containing an exclusion requirement is in force, the authority has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement.".

(3) In Article 58 of that Order (discharge and variation, etc., of care orders and supervision orders), after paragraph (3) there shall be inserted the following paragraph -

" (3A) On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.".

(4) After Article 63 of that Order there shall be inserted the following Article -

" Power to include exclusion requirement in emergency protection order

63A.

- (1) Where -

the court may include an exclusion requirement in the emergency protection order.

(2) The conditions are -

(b) that another person (whether a parent of the child or some other person) -

(3) For the purposes of this Article an exclusion requirement is any one or more of the following -

    (4) The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order.

    (5) Any period specified for the purposes of paragraph (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order.

    (6) If, while an emergency protection order containing an exclusion requirement is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement.".

(5) In Article 64 of that Order (duration of emergency protection orders and other supplemental provisions), after paragraph (7) there shall be inserted the following paragraph -

" (7A) On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an emergency protection order may be varied or discharged by the court in so far as it imposes the exclusion requirement.".

Transfer of tenancies
Transfer of certain tenancies
     30. Schedule 2 (which makes provision in relation to the transfer of certain tenancies on divorce, etc. or on separation of cohabitees) shall have effect.

Dwelling-house subject to mortgage
Dwelling-house subject to mortgage
     31. - (1) In determining for the purposes of this Order whether a person is entitled to occupy a dwelling-house by virtue of an estate, any right to possession of the dwelling-house conferred on a mortgagee of the dwelling-house under or by virtue of his mortgage is to be disregarded.

    (2) Paragraph (1) applies whether or not the mortgagee is in possession.

    (3) Where a person ("A") is entitled to occupy a dwelling-house by virtue of an estate, a connected person does not by virtue of -

have any larger right against the mortgagee to occupy the dwelling-house than A has by virtue of his estate and of any contract with the mortgagee.

    (4) Paragraph (3) does not apply, in the case of matrimonial home rights, if under Article 5 those rights are a charge, affecting the mortgagee, on the estate mortgaged.

    (5) In this Article "connected person", in relation to any person, means that person's spouse, former spouse, cohabitee or former cohabitee.

Actions by mortgagees: joining connected persons as parties
     32. - (1) This Article applies if a mortgagee of land which consists of or includes a dwelling-house brings an action in any court for the enforcement of his security.

    (2) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mentioned in paragraph (3).

    (3) The circumstances are that -

(a) the connected person is enabled by Article 4(3) or (6) (or by Article 4(3) or (6) as applied by Article 13(13) or 14(13)), to meet the mortgagor's liabilities under the mortgage;

(b) he has applied to the court before the action is finally disposed of in that court; and

(c) the court sees no special reason against his being made a party to the action and is satisfied -

    (4) In this Article "connected person" has the same meaning as in Article 31.

Actions by mortgagees: service of notice on certain persons
     33. - (1) This Article applies if a mortgagee of land which consists, or substantially consists, of a dwelling-house brings an action for the enforcement of his security, and at the relevant time there is a registered matrimonial charge.

    (2) If the person on whose behalf the matrimonial charge is registered is not a party to the action, the mortgagee must serve notice of the action on him.

    (3) If -

(a) a certificate of the result of an official search, made on behalf of the mortgagee, in the Land Registry or, as the case may be, of a negative search so made in the Registry of Deeds has been issued; and

(b) the action is commenced within a period of 14 days after the date of the issue of the certificate,

the relevant time is the date of the certificate.

(4) In any other case the relevant time is the time when the action is commenced.

Jurisdiction and procedure, etc.

Prepared 23 June 1998

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URL: http://www.bailii.org/nie/legis/num_orders/1998/19981071(d).html

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	Northern Ireland Orders in Council
You are here: BAILII >> Databases >> Northern Ireland Orders in Council >> The Family Homes and Domestic Violence (Northern Ireland) Order 1998 (N.I. 6) URL: http://www.bailii.org/nie/legis/num_orders/1998/19981071(d).html