Family - Domestic Violence

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Theme

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Has the law been adequate in it's response? YES

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1. Introduction

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1. DV will affect 1 in 4 women and 1 in 6 men in their lifetime - Living Without Abuse
   
2. Law adequate despite criticisms
3. Three criticisms of law; category of associated persons, victim autonomy and law's protection of property rights.
4. Although agree on distinction between relationships, law is adequate. Reform not of FL but of behaviour.

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2A. Family Law's Response - History

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1. Position of women: no law against marital rape, lone women couldn't get mortgage, DV rarely mentioned.
2. Womens movement. R v. R abolished marital rape exception. Public Awareness "drew back curtains" of homes and forced society to look in e.g. Chiswick Aid
3. Emergence of DV as a social issue
4. Herring: initially confusing selection of legislation with conflicting aims - Domestic Violence and Matrimonial Proceedings Act 1976; Domestic Proceedings and Magistrates Courts Act 1978 - what were the aims?
5. Mid 1990s: view that DV protection was only for heterosexual couples. Orders were hard to obtain and protection incoherent.

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2B. Family Law Act 1996

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1. In response Part IV Family Law Act 1996 made two orders available:
2. Non-Molestation - s42 - applicant seeks injunctive order to stop molestation
3. Occupation order - s33 - 38 - remove responded from the house/area of house/enforce applicants right to stay at property

Going to address criticisms which were actually unfounded

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3. Associated Persons

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1. Only allowed for associated persons as in s62. There are eight broad categories. Herring: key is emotional tie.
2. Bainham: extremely broad.Means it can apply to lots of victims
3. s3 Domestic Violence Crime and Victims Act 2004 amended definition of co-hab to same sex couple following Ghadian v. Godin-Mendoza judgment
4. s4 - added new category to include those in an intimate relationship for significant duration - enabled no-cohab straight and gay couples to get non-molestation order

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3A. Analysis of Associated Persons

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1. Hayes and Williams - law shouldnt play a limit on who is entitled to apply for non-molestation order - categorys should be eliminated.
   
2. Reece - this would take away fundamental difference of DV. It happens between family. Although Reece argues category too wide.
3. Essay: views category as suitable balance. Not too wide to render DV inexplicable from standard abuse, but wide enough to recognise diverse nature of modern relationships

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4. Victim Autonomy

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1. Domestic Violence, Crime and Victims Act 2004 - some elements of orders put in hands of police.
   
2. s42(a) - strong enforcement. Criminal offence to breach non-molestation order. Police enforcement
3. Victim not relied upon to bring contempt. Can go against wishes of victim.
4. s66 - Would allow a third party to apply to court for order, without permission of victim.

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4A. Victim Autonomy - Criticism

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1. Hitchings - disempower the victim - although admirable in many ways.
   
2. Strickland - DV is a gendered crime. Taking power away from women into the hands of men.
3. Pratt - lack of power puts people off applying for non-mol order

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4B. Victim Autonomy - Praise

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1. Choudry and Herring - human rights/protection of victims justifies state intervention. Autonomy can become "a tool of opression" rather than "a sword with which to combat it"
2. Parliamentary Domestic Violence Statistics - unreported, but victims are often unwilling to co-operate, so police need to enforce to punish
3. Peter de Cruz - victims often don't self-identify.
4. Home Office (2003:8) - society has "tolerated" for too long. This sends a message
5. Bansi Sani - sends clear message that DV isnt acceptable
   

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5. Occupation Order Distinctions

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1. Harder to get as they are based on property right, and if not, relationship between applicant and respondent
2. First distinction justifiable, second not and law is inadequate
3. s33 - receive most protection. Either beneficial estate, or interest, or contract, or by virtue of enactment - they have the right to remain in occupation
4. s33(7) - significant harm test. Starting point for courts. Applicant/child will result in significant harm greater than that received by the respondent if order made.
5. s33(6) - even if not, court can look to general factors e.g. financial resources + housing needs
6. In contrast - non-entitled applicants, who don't have property rights, must jump further hurdles e.g. ex-spouses/civil partnerships with no property rights must look at time since relationships, finances etc. - s35(6)

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5A. Distinctions - Analysis

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1. LC Report 207 - people are more important than property when distinguishing.
2. Chalmers v. John - draconian order to order someone out of their home?
   
3. Herring - property rights forfeited when performing violence in house.
4. Distinction acceptable because removing someone who has property rights is stronger infringement than someone who doesn't.
5. Also - orders are usually short term. So acceptable that law makes distinction.

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6. Distinction of Relationship Status

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1. Law distinguishing relationships lacks logical reasoning

2. Doesn't matter on property rights BUT - s35 - 36 -- means max duration of orders different for cohabitants vs. spouses ex. spouses

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6A. Distinction of Relationship Status - Criticism

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1. ONS (2002) - out of keeping with growing existence of co-habiting couples.
   
2. Beyond scope of essay to talk about equality in relationships - unsatisfactory element
3. Kaganas - reflects continued hierarchy of marriage as the "ultimate relationship"

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7A. What can the law really do?

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1. FL's response has been adequate. Substantiated by context which FL stands. It is not just FL that protects domestic violence victims.
2. Still developing - Home Office Consultation, Dec 2014 - amendment to the Serious Crime Bill will explicitlycriminalise patterns of coercive and controlling behaviour where they are perpetratedagainst an intimate partner or family member
3. Claims in tort law can be brought under the Protection from Harassment Act 1997 and the criminal law -- Clare's Law and Domestic Violence Protection Orders -- fill the gap in current legislation

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7B. Limits of the law

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1. Choudery and Herring: "a legal response alone cannot seek to combat the patriarchal power, social forces ... learned behaviour that accounts for DV"
2. The problem is the attitudes of the CPS and society
3. e.g Cassandra Hasanovic -- made police aware of repeated threats, killed on the way to refuge
4. Herring - domestic violence is underestimate in the public consciousness.
5. The Home Office - in reality "domestic violence is the largest cause of morbidity worldwide in women"
6. Cuts to legal aid, making only available to women in refuge is not going to help the matter. Legislation good, but no access to protection.
7. Efforts put into far reaching social change rather than punishment
8. Critics should focus, if anything on FL, on the distinctions between relationships

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8. Conclusion

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Something does need to be done, but FL is doing as much as it can do