Q&As

Can a non-molestation or occupation order be obtained in order to protect an elderly wife against violence from a husband suffering from dementia? If the husband does not have capacity can the order be enforced? Are there any alternative proceedings that could be considered instead?

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Published on LexisPSL on 26/09/2017

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Can a non-molestation or occupation order be obtained in order to protect an elderly wife against violence from a husband suffering from dementia? If the husband does not have capacity can the order be enforced? Are there any alternative proceedings that could be considered instead?

'A protected party' is defined under the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 2.3(1) as a person who lacks capacity within the meaning of the Mental Capacity Act 2005 (MCA 2005), to conduct proceedings.

A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to that matter because of an impairment of, or disturbance in, the functioning of the brain. A person is unable to make a decision if they are unable to understand the information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision or communicate their decision (whether by using sign language or other means).

If the person against whom an injunction is sought clearly lacks capacity in this way, then procedural rules must be complied with when applying for and continuing proceedings against that person. If there is good reason to doubt whether the prospective respondent has sufficient capacity under the MCA 2005, then they may be unlikely

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