Domestic Violence

An Overview and Review of the English Law

Definition

• Primarily a problem of men abusing women

• Refers to intimate relationships

• Refers to post-separation violence

• Extended to cover same sex relationships

• Elder abuse and abuse of the disabled perceived as raising different issues

No legal definition

No definition of ‘molestation’ in FLA 1996.

No statutory definition of domestic violence

No separate offence

Definition for purposes of joint working and monitoring:

‘any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults, who are or have been intimate partners or family members, regardless of gender or sexuality’.

Domestic violence as a social problem

• Women no longer seen as adjuncts of husbands

• Family privacy no longer impenetrable by state

• Family no longer seen solely as a haven but as potentially dangerous

Criminal Law

• Covered by variety of offences ranging from assault to murder

• New offence of causing or allowing the death of a child or vulnerable adult

(Vulnerable: ability to protect to protect oneself impaired by disability, illness, old age or otherwise)

Implementation of criminal lawPoliceCriticised: Under-recording, low arrest rates, poor evidence

collection.New powers of arrest

Crown Prosecution ServiceCriticised: Small proportion of cases prosecuted to

convictionNew policy to increase prosecution and improve victim care

CourtsCriticised: Lenient sentences, bind-oversNew sentencing guidelines? New ‘special measures’. New

rules on hearsay. Specialist courts

Protection from Harassment Act 1997

• Offence of harassment (alarming or causing distress – includes eg unwanted phone calls, gifts)

• Offence of putting a person in fear of violence

• Restraining orders (now extended availability)

• Tort of harassment

Civil Law pre-1996

• Law Commission: Law complex and confusing; post-separation violence inadequately addressed; law on ousters too restrictive; too much emphasis on nature of conduct instead of its impact.

• Research: courts reluctant to remove abusers from their property; property rights stressed; orders ineffective (no back-up from police or courts)

Family Law Act 1996

• Two distinct categories of order: non-molestation orders and occupation orders.

Law Commission: An order not to be violent or molest someone can be obeyed without prejudice to the interests of the person so ordered, while occupation orders can affect one’s interests in the home, albeit justifiably (para 2.48). Each type of order should have different criteria but the orders can be used in combination.

Orders available to associated persons

Non-molestation orders

• Examples of . . . ‘non-violent’ harassment or molestation cover a very wide range of behaviour. Common instances include persistent pestering and intimidation through shouting, denigration, threats or argument, nuisance telephone calls, damaging property, following the applicant about and repeatedly calling at her home or place of work. Installing a mistress into the matrimonial home with a wife and three children, filling car locks with superglue, writing anonymous letters and pressing one’s face against a window whilst brandishing papers have all been held to amount to molestation. The degree of severity of such behaviour depends less upon its intrinsic nature than upon it being part of a pattern and upon its effect on the victim (Law Commission 1992)

• High degree of harassment justifying court intervention (C v C 1998)

Indefinite duration possible

Associated Persons

• Nature of family relationships necessitates special remedies and procedures (Law Commission) eg strong emotions, irrational behaviour, proximity, post-separation violence. Definition covers eg spouses, cohabitants, relatives, parents of child

• Now extended to cover civil partnerships and same sex cohabitation. Dating couples also referred to but provision not in force

Occupation orders

• Distinction between ‘entitled’ and ‘non-entitled’ persons

• More protection for entitled persons –

Interference with property rights more difficult to justify if not entitled.

Longer term regulation until decision about disposition of property as opposed to short-term protection

(Law Commission)

‘Entitled’ persons

• Interest in property recognised by the law eg contract, trust

• Home rights: arise automatically from marriage and now, also, civil partnership.

(right to occupy the home etc)

Entitled persons cont

• Court can make a declaratory order re right to occupy property

• Court can make order to regulate occupation of the home eg suspend owner’s right to occupy

• Court is obliged to make a regulatory order if the balance of harm test is satisfied.

• If the balance of harm test is not satisfied, court has a discretion

Criteria for making orders

• Balance of harm test:If it appears to the court that the applicant or any relevant

child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that—

(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

Criteria cont

If balance of harm test not met, court has discretion. • The court shall have regard to all the circumstances

including— (a) the housing needs and housing resources of each

of the parties and of any relevant child; (b) the financial resources of each of the parties; (c) the likely effect of any order, or of any decision by

the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and(d) ) the conduct of the parties in relation to each other and otherwise

‘Non-entitled’ persons

• Former spouses and civil partners

• Cohabitants and former cohabitants

Rights less extensive than for spouses/civil partners.

Cohabitants and former cohabitants are treated less favourably than other two categories

Non-entitled former spouses/civil partners

• First stage – occupation rights• Second stage – subsection 5 provision ie

regulatory order.• If court makes order re occupation rights, then

decides whether to make regulatory order. • Court must make order is balance of harm test is

satisfied. Otherwise court has discretion.• Some additional considerations re exercise of

discretion eg duration of separation• Order lasts 6 months renewable for further

periods of 6 months

Non-entitled cohabitant or former cohabitant

• Also occupation order and subsection 5• No obligation on court to make a regulatory order• Exercise of discretion on basis of factors including

balance of harm test.• Other additional factors:e) the nature of the parties' relationship and in particular the

level of commitment involved in it;(f) the length of time during which they have cohabited;(g) whether there are or have been any children who are

children of both parties or for whom both parties have or have had parental responsibility

Duration of 6 months renewable only once for 6 months

Other orders

• Ancillary orders can be made eg possession of furniture, payment of rent.

• Payments to third parties not enforceable• Ex parte orders may be made where ‘just and convenient to do so’. • In deciding whether to make such an order, the court must, have

regard to all the circumstances, including any risk of significant harm to the applicant or a relevant child, attributable to the respondent’s conduct, if the order is not made immediately; whether, unless the order is made immediately, it is likely that the applicant will be deterred or prevented from proceeding; and whether there is reason to believe the respondent is evading service and the applicant or child will be prejudiced by delay.

Enforcement• Contempt of court• Power of arrest - The court is obliged to attach a

power of arrest if it finds that the respondent has used or threatened violence against the applicant or a relevant child, unless it is satisfied that there will be adequate protection without the power attached

• Offence of breaching a non-molestation order. Also, court must consider whether to make non-molestation order when it makes an occupation order. Court cannot accept an undertaking when respondent has used or threatened violence and the enforcement measures available with a non-molestation order are necessary for protection

Other applicants

• Third parties – not in force

• Children.

If under 16 need the leave of the court.

Not clear what position is re occupation orders

Exclusion orders under Children Act 1989

Evaluation of Family Law Act 1996

• Barron’s research: only effective if police enforce law and perpetrator respects the law

• Humphreys and Thiara:

One third - orders helpful and abuse stopped

39% - abuse continued but felt more safe

25% - order had no effect – courts and police ‘unhelpful’

Many did not use the law eg because of fear or cost

Evaluation cont

• ‘The effectiveness of protection orders for some women suggests that there is a group of men who respond to cultural norms and the legislative framework and who do not want to be seen to step outside the law. The shame brought to the family or the impact on employment provide significant restraining factors. More assertive action on breaches could impact relatively quickly on making more of these orders effective’.

(Humphreys and Thiara 2003 p.209)

• ‘[A] smaller group of chronic and serious offenders were unresponsive to normative frameworks. “Brushes” with the law which result in being charged with minor offences, cautions, binding over or short custodial sentences had no effect and in fact served to reinforce the abuser’s belief that there are no effective constraints or sanction on his behaviour. They can increase the dangers to women, who will be seen to have “transgressed” by having called the police or given evidence against the abuser. Moreover poor and ineffective action from law enforcement and prosecution services may serve to confirm a woman’s belief that she is outside help and, therefore, has no option other than to seek to appease the abuser.’

(2003 p.210)

A Co-ordinated Response

• Perpetrator programmes

• Serious treatment by criminal justice system

• Access to services and advice

• Access to accommodation (many women don’t want occupation orders because they don’t want to be found)

• Change the law re contact

Co-ordinated Response in the UK

• Perpetrator programmes (RESPECT)• Awareness of need for extra-legal support and services

as well as legal remedies• Multi-agency partnerships and domestic violence fora set

up• Multi agency risk assessment to help manage cases• Plans for independent domestic violence advisors • Domestic violence homicide reviews• Training eg of judges and prosecutors considered• Public awareness campaignsBUTRefusal to accept proposal for presumption against contact

Contact disputes

• Assumption that contact is almost always in child’s best interests

BUT• Re L: domestic violence or child abuse should

displace the assumption• Guidelines: • Court should make findings re domestic violence• Court should not make an order unless it is safe

(before, during and after contact)• Consider whether contact should be supervised

Contact cont

• Mothers under pressure from professionals like CAFCASS, solicitors and also courts to agree to contact

• Hearings re allegations of domestic violence not held• Adequate measures to ensure safety not taken• Low vigilance contact taking place instead of supervised

contact• Contact proceedings used to track down victims• Children ordered to have contact with parent whose

conduct has led to their names being put on child protection register

• Children who do not want contact not taken seriously

Elder abuse• ‘2.7 A consensus has emerged identifying the following main different forms of abuse:• • physical abuse, including hitting, slapping, pushing, kicking, misuse of medication,

restraint, or inappropriate sanctions;• • sexual abuse, including rape and sexual assault or sexual acts to which the

vulnerable adult has not consented, or could not consent or was pressured into consenting;

• • psychological abuse, including emotional abuse, threats of harm or abandonment, deprivation of contact, humiliation, blaming, controlling, intimidation, coercion, harassment, verbal abuse, isolation

• or withdrawal from services or supportive networks;• • financial or material abuse, including theft, fraud, exploitation, pressure in

connection with wills, property or inheritance or financial transactions, or the misuse or misappropriation of property,

• possessions or benefits;• • neglect and acts of omission, including ignoring medical or physical care needs,

failure to provide access to appropriate health, social care or educational services, the withholding of the necessities

• of life, such as medication, adequate nutrition and heating; and• • discriminatory abuse, including racist, sexist, that based on a person’s disability,

and other forms of harassment, slurs or similar treatment’ (DoH 2000)

Elder abuse cont

• Criminal law

• Protection from Harassment Act

• Family Law Act:

non-molestation order against associated person

occupation order – only if entitled and associated person

Provision of services and Protection of Vulnerable Adults scheme