Family: L7 – Domestic Violence
The notion of ‘domestic violence’
For a long time there was no statutory definiton for domestic violence because they didn’t want there
to be any loopholes for the abusers
Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1 s 12: “any incident of
controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical,
sexual, financial or emotional) between individuals who are associated with each other”
Domestic violence can’t occur with strangers, that would be assault or battery – deals with close
personal relationships.
Legislation (Civil remedies):
Civil remedies under the Family Law Act 1996 – Part IV
Amended by the following acts:
- Domestic Violence, Crime and Victims Act 2004
- Forced Marriages (Civil Protection) Act 2007
- Crime and Security Act 2010
Civil remedies available under Part IV of the Family Law Act 1996
Covers 2 types of orders:
1. Non-molestation orders
2. Occupation orders
Non-molestation orders
Non-molestation orders:
Defined under s42 (1) FLA 1996: prohibit the respondent from molesting another person who is
associated with the respondent and/or a relevant child
Doesn’t define molestation, up to the courts – offers more protection than being restricted to a
definition.
‘person associated with the respondent’: s.62 (3) FLA 1996 Part IV
- (former) spouses/ civil partners
- (former) (opposite-sex/ same-sex) cohabitants
- persons who live/ have lived in the same household otherwise than by reason of one being the
other’s employee/ tenant/ lodger/ boarder
- relatives
- (formerly) engaged couples/ parties to a (terminated) civil partnership agreement – can only be
brought within 3 years of the termination of the engagement or CP or it is seen as too remote
- persons who have (had) an intimate personal relationship of significant duration – as long as they
live together as a family, it doesn’t matter how long they have been together.
- persons who are both parents/ have parental responsibility for the same child
- parties to the same family proceedings – EG: the maternal grandma applies to become the carer
of the child to remove the chld from the father. Father and maternal grandma aren’t related.
- If in doubt, the court will treat the person as ‘associated’: G v F (Non- Molestation Order:
Jurisdiction) [2000] 2 FLR 233, Purposive interpretation of cohabitation – this for the benefit of
the alleged V.
‘relevant child’: s. 62 (2) FLA:
- Any child living with/ who might be expected to live with either party to the proceedings
- Any child in relation to whom an order under the Adoption and Children Act 2002 or the
Children Act 1989 is in question in the proceedings.
- Any child whose interests the court considers relevant
‘molestation’:
- no definition; case-by-case interpretation
- wide meaning (not just violence), can be any type of harassing behaviour
- there are some limits to that – C v. C (Non-molestation Order: Jurisdiction) [1998] 1 FLR 554: H
wanted to stop W from publishing details of their life together which he considered defamatory –
Molestations is conduct clearly harassing so that the intervention of the court is called for
, - Johnson v Walton [1990] 1 FLR 350: R sent naked pictures of ex-gf to a newspaper. This
amounted to molestation because it was intended to distress the V – Any behaviour intended to
cause distress
Criteria for granting non-molestation orders:
- s.42(5) FLA 1996: courts consider all circumstances of the case, including the need to secure
health, safety, and well-being of the applicant and any relevant child
Orders without notice (ex parte orders):
s.45 FLA 1996:
- s. 45 (1) - Order without the respondent being given notice of the proceedings
- where it is appropriate: s45(2):
o Risk of significant harm to applicant or any relevant child;
likelihood of applicant being deterred from pursuing the application;
respondent aware of proceedings but deliberately avoiding service
- s. 45 (3) - Respondent given opportunity to make representations as soon as is convenient
this infringes on your right to fair trial
Terms and duration of the order:
- Terms - s.42(6) FLA 1996: molestation in general and/ or specific acts of molestation
- s.42(7) FLA 1996: for a specified period or until further order
Variation and discharge:
- On the application of the respondent or applicant s. 49 FLA
Undertakings (promises to the court):
s.46(1) Court may accept an undertaking instead of making an order
s. 46 (4) Enforceable as if they were court orders
- if breached, they will be held in contempt of court.
s. 46 (3A) Must not accept:
- where respondent has used/threatened force against applicant and /or a child;
- when NMO is necessary so that a breach may be punishable as a criminal offence
Breach of an order:
Civil proceedings for contempt of court
- Contemnor may be ordered to pay a fine or serve a prison sentence
Rafiq v. Muse [2000] 1 FLR 820: Imprisonment for breaches of NMO – acts a deterrence to show
that domestic violence is unacceptable
H v. O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR 329 – More
deterrent punishment needed
Imprisonment is very likely even if civil proceedings are brought against the abuser.
Criminal offence of breaching an NMO
- Since 1 July 2007, breach of an NMO is a criminal offence – s42 A (1) FLA
- introduced by DVCVA 2004
Domestic Violence, Crime and Victims Act 2004:
Amendments to Part IV of the Family Law Act 1996
- Extended categories eligible to apply for remedies
- Made a breach of a non-molestation order a criminal offence
- Restricted the use of undertakings instead of orders
Crime and Security Act 2010:
ss. 24-26 domestic violence protection notice (DVPN):
- Don’t have to go to court – this type of notice is issued by the police
- When can this be issued: Power to issue a DVPN if the officer has reasonable grounds for
believing that a person has been violent towards, or has threatened violence towards, an
associated person
o even if the victim does not consent to the issuing of the notice;
o may require the perpetrator to leave the premises they share with the victim
- The breach of the notice is an arrestable offence.
o s 25 (1) (b) DVPN must state that a constable may arrest P without warrant if the constable
has reasonable grounds for believing that P is in breach
The notion of ‘domestic violence’
For a long time there was no statutory definiton for domestic violence because they didn’t want there
to be any loopholes for the abusers
Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1 s 12: “any incident of
controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical,
sexual, financial or emotional) between individuals who are associated with each other”
Domestic violence can’t occur with strangers, that would be assault or battery – deals with close
personal relationships.
Legislation (Civil remedies):
Civil remedies under the Family Law Act 1996 – Part IV
Amended by the following acts:
- Domestic Violence, Crime and Victims Act 2004
- Forced Marriages (Civil Protection) Act 2007
- Crime and Security Act 2010
Civil remedies available under Part IV of the Family Law Act 1996
Covers 2 types of orders:
1. Non-molestation orders
2. Occupation orders
Non-molestation orders
Non-molestation orders:
Defined under s42 (1) FLA 1996: prohibit the respondent from molesting another person who is
associated with the respondent and/or a relevant child
Doesn’t define molestation, up to the courts – offers more protection than being restricted to a
definition.
‘person associated with the respondent’: s.62 (3) FLA 1996 Part IV
- (former) spouses/ civil partners
- (former) (opposite-sex/ same-sex) cohabitants
- persons who live/ have lived in the same household otherwise than by reason of one being the
other’s employee/ tenant/ lodger/ boarder
- relatives
- (formerly) engaged couples/ parties to a (terminated) civil partnership agreement – can only be
brought within 3 years of the termination of the engagement or CP or it is seen as too remote
- persons who have (had) an intimate personal relationship of significant duration – as long as they
live together as a family, it doesn’t matter how long they have been together.
- persons who are both parents/ have parental responsibility for the same child
- parties to the same family proceedings – EG: the maternal grandma applies to become the carer
of the child to remove the chld from the father. Father and maternal grandma aren’t related.
- If in doubt, the court will treat the person as ‘associated’: G v F (Non- Molestation Order:
Jurisdiction) [2000] 2 FLR 233, Purposive interpretation of cohabitation – this for the benefit of
the alleged V.
‘relevant child’: s. 62 (2) FLA:
- Any child living with/ who might be expected to live with either party to the proceedings
- Any child in relation to whom an order under the Adoption and Children Act 2002 or the
Children Act 1989 is in question in the proceedings.
- Any child whose interests the court considers relevant
‘molestation’:
- no definition; case-by-case interpretation
- wide meaning (not just violence), can be any type of harassing behaviour
- there are some limits to that – C v. C (Non-molestation Order: Jurisdiction) [1998] 1 FLR 554: H
wanted to stop W from publishing details of their life together which he considered defamatory –
Molestations is conduct clearly harassing so that the intervention of the court is called for
, - Johnson v Walton [1990] 1 FLR 350: R sent naked pictures of ex-gf to a newspaper. This
amounted to molestation because it was intended to distress the V – Any behaviour intended to
cause distress
Criteria for granting non-molestation orders:
- s.42(5) FLA 1996: courts consider all circumstances of the case, including the need to secure
health, safety, and well-being of the applicant and any relevant child
Orders without notice (ex parte orders):
s.45 FLA 1996:
- s. 45 (1) - Order without the respondent being given notice of the proceedings
- where it is appropriate: s45(2):
o Risk of significant harm to applicant or any relevant child;
likelihood of applicant being deterred from pursuing the application;
respondent aware of proceedings but deliberately avoiding service
- s. 45 (3) - Respondent given opportunity to make representations as soon as is convenient
this infringes on your right to fair trial
Terms and duration of the order:
- Terms - s.42(6) FLA 1996: molestation in general and/ or specific acts of molestation
- s.42(7) FLA 1996: for a specified period or until further order
Variation and discharge:
- On the application of the respondent or applicant s. 49 FLA
Undertakings (promises to the court):
s.46(1) Court may accept an undertaking instead of making an order
s. 46 (4) Enforceable as if they were court orders
- if breached, they will be held in contempt of court.
s. 46 (3A) Must not accept:
- where respondent has used/threatened force against applicant and /or a child;
- when NMO is necessary so that a breach may be punishable as a criminal offence
Breach of an order:
Civil proceedings for contempt of court
- Contemnor may be ordered to pay a fine or serve a prison sentence
Rafiq v. Muse [2000] 1 FLR 820: Imprisonment for breaches of NMO – acts a deterrence to show
that domestic violence is unacceptable
H v. O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR 329 – More
deterrent punishment needed
Imprisonment is very likely even if civil proceedings are brought against the abuser.
Criminal offence of breaching an NMO
- Since 1 July 2007, breach of an NMO is a criminal offence – s42 A (1) FLA
- introduced by DVCVA 2004
Domestic Violence, Crime and Victims Act 2004:
Amendments to Part IV of the Family Law Act 1996
- Extended categories eligible to apply for remedies
- Made a breach of a non-molestation order a criminal offence
- Restricted the use of undertakings instead of orders
Crime and Security Act 2010:
ss. 24-26 domestic violence protection notice (DVPN):
- Don’t have to go to court – this type of notice is issued by the police
- When can this be issued: Power to issue a DVPN if the officer has reasonable grounds for
believing that a person has been violent towards, or has threatened violence towards, an
associated person
o even if the victim does not consent to the issuing of the notice;
o may require the perpetrator to leave the premises they share with the victim
- The breach of the notice is an arrestable offence.
o s 25 (1) (b) DVPN must state that a constable may arrest P without warrant if the constable
has reasonable grounds for believing that P is in breach
