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54 Cards in this Set
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Domestic Violence definition |
New definition from March 2013: any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those ages 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
The abuse can encompass but is not limited to: psychological; physical; sexual; financial; and emotional.
Controlling behaviour is: a range of acts designed to make aperson subordinate and/or dependent by isolating them from sources of support,exploiting their resources and capacities for personal gain, depriving them ofthe means needed for independence, resistance and escape and regulating theireveryday behaviour.
Coercive behaviour is: an act or a pattern of acts ofassault, threats, humiliation and intimidation or other abuse that is used toharm, punish or frighten their victim. |
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Domestic violence is increasingly a human rights issue: |
A v Croatia - long relationship with history of domestic violence and the wife brought Articles 2 and 8 claims. Her Article 8 claim was successful but the violence wasn't bad enough to trigger Articles 2/3. Hajduova v Slovakia - if you put someone in detention and then let them go there will be some liability so the Article 8 claim succeeded when violent husband was released from a medical hospital. |
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Two orders available: |
- Non-molestation order to prevent the recurrence of violence and other intimidation s42 - Occupation order to require the respondent to move out of occupation of the family home or part of it, or to allow the applicant to return and occupy the premises alone...ss30-41 |
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Other orders we should know something about: |
- Domestic violence protection order (DVPO) - New criminal offence of "controlling or coercive behaviour in an intimate or family relationship" but not in effect yet - Whole range of orders to do with forced marriages - Forced Marriages Act 2007 but also added to the Family Law Act 1996 |
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Non-molestation orders |
Number of applications for such orders has been dropping. It is a singular order available under s42 of the Family Law Act 1996 and prohibits a person from molesting the applicant, or a relevant child.
It’s up to the court what the substance is, but it does say in s42(6) that the terms should refer to molestation or particular acts of molestation or both.
There is deliberately no definition of molestation in the act as it was felt that the case law before 1996 had generated a sufficiently precise and elastic definition so there was no need for more. |
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Defining "molestation" (1) |
Horner [1982] - molestation covers "any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the court". No direct contact necessary. Johnson v Walton [1990] - it was a breach of a non-molestation order for ex-partner to provide topless photos of her to a national newspaper. Vaughan [1973] - hanging around his ex-wife's house, not threatening or being intimidating just being a nuisance amounted to molestation. Wooton [1984] - no notion of fault necessary for a non-mol as here one was granted against a party who was suffering from epilepsy and would be violent towards her partner when a fit was approaching. |
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Defining "molestation" (2) |
There is now a checklist of sorts in s42(5) for the courts to consider and so applying this to case law after the Act, a narrower conception of molestation emerged. C v C [1998] - wife planned to give info to a national newspaper to humiliate her husband but that did not amount to molestation. Molestation is what the courts think it is and if they think there should be an order there will be. C v C is the authority but pre-1996 Act case law is still good law, but Johnson v Walton probably wouldn't be followed. |
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Defining "molestation" (3) |
Banks [1999] - wife had a mental health problem and when she was in her worst state she would physically attack her husband. County Court refused his application for a non-mol as she could not help her behaviour as it was a symptom of her illness. It's unlikely that Wooton would be followed nowadays. Chechi v Bashier - court refused to grant a non-mol as injunctions could be granted during the land law proceedings - it was not really a family dispute but one about land. On appeal CA accepted cross undertakings - this is a mechanism to diffuse situations as it is less formal. So despite the intention that the definition of molestation would not change after the Act, the case law since then has led to a narrower definition. |
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Who can apply for non-mols? (1) |
An associated person - defined in s62(3). "relatives" from s62(3)(d) is now defined in s63(1) and it's quite a long list. The associated person definition offers no protection to new partners of those whose former partners resent their relationship and direct their frustration at the new partner. |
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Who can apply for non-mols? (2) |
There is no age limit but you need the leave of the court if you are under 16. You have to be Gillick competent and understand the circumstances surrounding the order.
When there is a need to protect a child from molestation normally an adult will apply for an order on their behalf as you can apply on behalf of a "relevant child" - defined in s62(2). G v F [2000] - could it be said they were cohabitants even though they each had their own flats and took turns to stay in each one? It was a question of fact - they had a sexual relationship; had shared flats in the past and had a shared bank account. Nowadays the courts say there is a presumption of being associated people and it is for the respondent to rebut that. |
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Who can apply for non-mols? (3) |
There was a provision (s60) which said that a "representative" could apply - thinking it would be used by the police - but it has never been brought into force largely because the police never wanted that responsibility. LA v DL [2011] - example of a case where it would have been useful if s60 was in force. Elderly parents had a child still living with them who was in his late 50s and was violent towards them. Court could have used inherent jurisdiction but s60 would have been more protective. |
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Who can't apply for a non-mol? |
s62(6) - a "body corporate" can't apply. This is to prohibit local authorities from applying for non-mol's instead of using their public law powers. |
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When can/should a non-mol be made? |
s42(2)(a) - they can make an order following a request in ongoing family proceedings or when an application is made for a free-standing order. s42(2)(b) - court can make a non-mol without being asked, in any family proceedings but they don't often do this. |
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When can/should a non-mol be made? (2) |
s42(7) - it's up to the court how long the order lasts - can have a finite amount of time or be indefinite. M v W [2000] - High Court said a non-mol should be for a specific duration, unless there are special or exceptional circumstances in which case it can be indefinite. Re B-J [2000] - M v W overruled by the CA as it's not beneficial for the courts to have to specify what counts as special or exceptional circumstances - each case needs to be decided on its merits. |
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Breach of a non-molestation order is a criminal offence (1) |
S42A – breach of a non mol (without reasonable excuse – s42A(1)) is an offence. A bit problematic as it’s a civil order with criminal consequences.
You can’t commit the crime unless you knew there was an order in existence, as most orders are sought and granted ex parte.
Maximum penalty in the Crown Court is five years in prison plus a fine. In the Magistrates Court it’s 12 months in prison plus a fine. |
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Breach of a non-molestation order is a criminal offence (2) |
R v Richards [2010] - burden of showing reasonable excuse lies with the prosecution. Here he had a good reason to breach it and go to his ex-wife's house as she was an alcoholic and he knew she was drunk and he was concerned for the welfare of their two kids. R v Briscoe [2010] - he was sent to prison for two breaches of a non-mol which were knocking on her door and calling her. Court said he should not have been sent to prison for that as there were no aggravating features - imprisonment should be reserved for cases involving significant violence or harm. |
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The Alternative Jurisdiction: The Protection from Harassment Act 1997 (1) |
This may be preferable as damages are available. The basic idea under s1(1) is that a person must not follow a course of conduct that amount to harassment. There was some question about whether this Act applied in a family context at all but it was held to apply in family cases in Singh v Bhakar [2007] when a woman brought a case against her ex mother in law. R v Widows [2011] - not normally appropriate to use this Act for incidences of violence in an ongoing relationship. |
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The Protection from Harassment Act 1997 (2) |
s1(2) - a person will be judged as though he ought to know that a reasonable person in his position would think his activities amounted to harassment. R v Colohan [2001] - he had schizophrenia so argued a reasonable person has schizophrenia in his case but the court refused that - it is an objective test.
s1(3) - three requirements for the Act not applying but Hayes v Willoughby [2013] said you can't use that section if it becomes irrational. |
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The Protection from Harassment Act 1997 (3) |
Harassment must involve at least two instances - course of conduct s7(3). They must be causally linked.
Buckley and Smith v DPP [2008] – causal link can mean two things happening on the same day.
Iqbal v Dean Manson Solicitors [2011] – man who had written lots of letters succeeded on appeal against the conviction as the jury had not been directed to find a link between the letters
R v AJR [2013] –no course of conduct as only one incident
S2 – criminal offence of harassment. S4 aggravated harassment – “putting people in fear of violence”. |
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The Protection from Harassment Act 1997 (4) |
R v Curtis [2010]– in order to convict someone you have to show that the elements of the tort of harassment are present – harassment aimed at an individual; actions calculated to cause alarm or distress; conduct must be oppressive and unreasonable.
S3 statutory tort of harassment – there is already a tort of harassment at common law and it seems in Curtis that it was the common law tort which was being referred to.
You can get damages under s3(2). Singh v Bhakar [2007]– got £35,000 damages because of the seriousness and longevity of the harassment.
S3(3) can apply ex parte to have a power of arrest attached to the injunction. S3A is the same as s3 but applies to harassing more than one person.
S5 “restraining orders” following conviction. S5A can also make a restraining order following acquittal. |
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The Protection from Harassment Act 1997 (5) |
R v Liddle [1999]– breaches of s4 = 8-12 months for one breach; 15 months for a second breach.
A-G Ref (No 7 of 2012)– got 12 months in prison for harassment to run consecutively with 2 years for firearms offenses otherwise he would have got more for the harassment.
R v Majeed [2012]– got 16 months in prison for no real violence but a barrage of texts and phone calls and it was what was said in these texts which got him this much time in prison.
High Court’s Inherent Jurisdiction to grant injunctions is still there and available to use. |
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Occupation Orders |
When someone applies for an occupation order there is an obligation on the court to consider whether a non-mol is also required. |
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Occupation Orders: Home Rights (s30) |
Married couples and civil partners are given statutory rights of occupation - "home rights". You only get them if your spouse is the owner or tenant of the property in which you live and you're not. You qualify for home rights if you have a beneficial interest only. They come into existence either when you get married or your spouse buys/rents property for you both to live in - whichever comes last. |
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Occupation Orders: Home Rights (2) |
s30(2)(a) - if in occupation, a right not to be excluded from the house or any part of it, except with the leave of the court. s30(2)(b) - if not in occupation, a right to enter the house but you must get the permission of the court. s30(7) - the property must be one that you have together in or intended to. S v S [1980] - husband bought a flat to live in with another woman so the wife's claim of home rights failed as he never intended them to live there together. |
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Occupation Orders: Home Rights (3) |
Home rights last as long as the marriage - s30(8) - or until the other spouse is no longer able to live in the property. Court has the discretion to extend the rights if the home rights are still in existence. Bennie [1993] - husband gets an ex parte order on the 10th July giving him 6 days of occupation. On 14th July the decree absolute of divorce is given but judge decides to extend the home rights on the 16th. Wife successfully appeals as the home rights cannot be extended on the 16th when the marriage ended on the 14th. You can give up home rights under schedule 4 paragraph 5. |
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Occupation Orders: Enforcing Home Rights under s33 |
You enforce home rights under s33 but it can also be used by bona fide owners or someone with a property right recognising their right to inhabit. You can use s33 against an "associated person" and the same definition as above applies. But you must have lived together in that house at some point. |
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Occupation Orders under s33 |
s33(3) provides for what the orders can do. Westcar [2006] - ordered under s33(3)(g) that he had to stay at least 100m from his former family home. He had not been violent. He appealed and was successful as it has to be absolutely necessary before the court will make an injunction under s33(3)(g). s33(4) court may simultaneously (with a s33 order) decree that the applicants are entitled, but this cannot be done by a Magistrates Court. |
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Criteria for deciding whether to make an order under s33 |
s33(6) checklist starts off by requiring the courts to look at all circumstances, but four things are specifically mentioned: housing needs; financial resources; effect on health and safety of making/not making an order; conduct. s33(7) - is the applicant or a relevant child going to be subjected to harm and is this harm attributable to the respondent if the order is not made? Then the court must make an order from the last of s33(3) unless the respondent or a relevant child is going to be subjected to harm if the order is made (doesn't have to be attributable to the applicant) so then we have to balance the harm. |
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Criteria for deciding whether to make an order (2): Balancing the harm under s33 |
If the harm to the applicant is greater than to the respondent, make the order, but if the harm to the respondent is greater than to the applicant don't make the order. If it's equal then the respondent succeeds and the order should not be made. "harm" is defined in s63(1). "attributable to" seems to imply some sort of blame but in G v G [2000] the court said you focus on the result not the intention. |
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Criteria for deciding whether to make an order under s33 (3) |
Chalmers v Johns [1999] - "considerable, noteworthy, important" gives you a sense of what we mean by significant harm. In this case the court said you only use s33(7) for extreme situations and the minor injuries here came nowhere near that. They also said that you should look to s33(7) before going to s33(6). B v B [1999] - married couple had a two-year-old daughter and husband's six year old son from previous relationship lived with them. Husband was extremely violent so she left with daughter and got an order under s33(7). On appeal the decision was reversed as the harm to Mrs B and her daughter did not outweigh the harm to Mr B and his son. Son had had an unsettled time and been to five schools already and been through the divorce between his Mum and Dad. Mrs B would be top of the list for social housing as a victim of domestic violence, whereas Mr B and his son would be a low priority. |
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Criteria for deciding whether to make an order under s33 (4) |
The most contentious part of s33(6) is the conduct element:
S v F [2000] - couple split up and three kids went with the Mum while the older one stayed with Dad. She tried to get him kicked out but was unsuccessful despite the fact his behaviour had been violent and antisocial as the harm caused to the remaining child would outweigh any notion of conduct.
Grubb v Grubb [2009] - she got an order under s33(6) based primarily on his conduct even though there was no violent conduct as it was his conduct which was causing problems in getting the divorce. |
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Criteria for deciding whether to make an order under s33 (5) |
Dolan v Corby [2011]– unmarried couple living as joint tenants broke up and no one wanted to move out, there had been violence on both sides. Ms Dolan persuaded the court to make an order under s33(6) and the court upheld it as she was a heroin addict so needed the continuity more than he did. Court said conduct is only one of the factors, not the determining one.
Re L (Children) [2012]– married couple’s relationship broke down and a s33(6) order was made saying that the husband must leave the property. CA said where it’s the case that two people can no longer live together they have to make a decision and she had the kids living with her so the decision was fair enough.
Davis v Johnson [1979]– first domestic case to go to the HOL. Lord Salmon said that domestic violence legislation was intended to provide “first aid not intensive care”. |
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Duration of an order under s33 |
s33(10) - an order can be indefinite until further order, or it can be until a specified event occurs, or it can be for a specified period. Entirely up to the court how long an order should last. |
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Other types of applicant: former spouses and civil partners with no existing right to occupy (where the respondent is entitled) - s35 |
If you're not in occupation the order will be granted under s35(4) for a right to enter - an "inster" order. If you're in occupation (or after an "inster" order has been granted) and want to stay you can apply under s35(3). s35(5) has the regulatory orders which include if it appears a relevant child could be harmed. The checklist in s35(6) is the same as s33 with a few additions. s35(10) these orders can last a maximum of 6 months but are renewable indefinitely. |
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Other types of applicant: cohabitants and former cohabitants - s36 |
Chances are with cohabitants one will be the owner/on the lease so can use s33 but the other cannot. Court must first consider whether to make an order to let them back in or let them in at all - s36(3)-(4). "inster" order must be made before an "ouster" order can be made. s36(6) has nine criteria and the balance of harm test. Court retains discretion of making an order even if the balance of harm test is satisfied. s36(10) orders under this section last a maximum of six months but can only be renewed once. |
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Other types of applicant: spouses, civil partners and former spouses and civil partners where neither has rights of occupation - s37 |
No need to be granted an inster order in order to be eligible for an ouster order - same criteria apply to both. List of four criteria, however if the balance of harm test is satisfied an order must be made. Duration of order: six months with one or more six month extensions. |
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Ex parte applications |
s45 - the court can make an ex parte order whenever they feel necessary. s45(2) gives guidelines. s45(3) - respondent must have the opportunity to have a full inter parte hearing as soon as possible - usually within a week. Ansah [1977] - ex parte orders should only be made "in an emergency when the interests of justice or the protection of the applicant or child demands immediate intervention. Such cases should be extremely rare". About 60% of non-mols and 30% of occupation orders last year were given ex parte. |
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Undertakings instead of Orders |
Under s46 the court can accept an undertaking that they won’t do it again, rather than making an order. It’s good for diffusing tension as there’s no finding of blame in anyway.
Under s46(4) breaking the undertaking is contempt of court – established in Roberts.
Chechi v Bashier[1999] – example of cross-undertakings.
Court cannot accept an undertaking where there’s been actual or threatened physical violence – s46(3). |
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Enforcement and the Power of Arrest |
Can only add a power of arrest to an occupation order under s47 which gives a power of arrest without warrant for a breach of the order. But it can only be attached where there has been used or threatened violence - s47(2) - not just when it's handy as in Re B-Q [2008] she got a PoA attached to a non-mol when her husband was criticising her at her son's rugby matches. Can no longer attach a PoA to a non-mol. PoA can be used creatively - H v H [2001] can use PoA to evict someone not just to detain them. |
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Power of Arrest (2) |
s47(4) - PoA may be of shorter duration than the main order and you can renew a PoA one or more times under s47(5). s47(8) and (9) - no real evidence that these have ever been used but under s47(8) it says that an applicant may apply for a warrant for arrest even if a PoA has not been added. s47(6) - there is a discretion as to whether to actually arrest. |
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Power of Arrest (3): What happens to the arrestee? |
They must be brought before a Magistrates Court within 24 hours. s47(7) - ability to remand. s48 - more info about why you are remanding e.g. for a medical report and the remand can last three weeks maximum if in custody, four weeks if bailed. Wheeldon v Wheeldon [1998] - initial arrest was for a substantive criminal offence, he was held for 12 hours then released and immediately re-arrested for the breach and the 24 hours started then. CA weren't happy with this but there was nothing unlawful about it. |
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Contempt of Court |
Magistrates can sentence someone to prison for up to a maximum of two months, or can impose a maximum of £5,000 fine for contempt of court - s63(3) Magistrates’ Court Act 1980
s50 Family Law Act 1996 - allows Magistrates to suspend a sentence for contempt.
s14(1) Contempt of Court Act 1981 - maximum imprisonment for contempt of court is two years for the High Court or County Court and the High Court can give an unlimited fine.
Villiers v Villiers[1994] - committed several breaches dealt with by two separate court cases. Got 18 months for one set, 12 months for the other. Successfully appealed because it added up to more than 2 years. It’s 2 years maximum, however many breaches there are. |
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Contempt of Court: the old approach |
Contempt of court was seen as a last resort to get someone to behave.
Ansah - “when every other effort to bring the situation under control has failed, or is almost certain to fail” - Ormerod J.
Smith v Smith [1988]- CA emphasised that you are punishing the contempt, must not be tempted to pass a sentence based on any separate criminal offence - they must be dealt with separately. |
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Contempt of Court: the newer approach |
That is no longer the approach, the courts are more ready to use the contempt of court powers. R v R [2001] - Ward J said there are two functions to contempt of court: (1) retributory designed to punish the contempt and (2) they have a coercive function to try and persuade someone to behave in future - so these things should be balanced. Lomas v Parle [2003] - CA said that where somebody has brought an action originally under Family Law Act or Protection from Harassment Act the sentences for contempt should be about the same. |
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Contempt of Court: the newer approach (2) |
Wood v Collins [2006] - 28 days in prison replaced by CA with 3 months in prison even though there was no violence was justified as he had a history of breaches and hadn't learnt his lesson. G v G [2006] - husband made threats to his ex-wife, damaged her property, sent threatening texts and was harassing her with his new wife. Sentenced to 8 months by the CA who agreed that an immediate prison sentence was appropriate. |
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Contempt of Court: the newer approach (3) |
Patel v Patel [2007] - had a 4 month suspended sentence and then breached a new non-mol. Court decided that because he hadn't heeded the warning of the earlier suspended sentence, the suspension should be lifted and he should get 10 months instead of 4. CA: there was a cumulative effect of the breaches so it was justified. IN EXAM: all you can say is it depends on how serious the breach is in the eyes of the court and the CA will increase or decrease the sentences from the first instance and give a few cases to demonstrate this. |
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New Police Powers: Domestic Violence Protection Orders |
ss24-33 Crime and Security Act 2010: DVPNs and DVPOs. Only brought into force in 2014. What's novel is that the application is made by the police. s27 - a police constable may apply to a Magistrates Court for a DVPO. Must be satisfied that there has been used or threatened violence by the person whom they are seeking the order against and must be an associated person. |
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New Police Powers: Domestic Violence Protection Orders (2) |
- S28(3)– must consider the effect of the making/not making the order on anyone under 18 - S28(4)– court must also consider the views (where practicable) of the associated person whom the order is intended to protect and anyone else living at the address - S28(5)– order can be made even if the person intended to benefit does not want the order to be made - S28(6)– the order substantively is a non mol - S28(7)– order can have general or specific terms - S28(8)– can make an occupation order prohibiting the person subject to the DVPO from entering premises, evicting someone else from premises, and prohibiting them from coming within a specified distance of premises |
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New Police Powers: Domestic Violence Protection Orders (3) |
Order must last a minimum of two weeks but a maximum of four weeks - designed as a short term remedy, as they're probably always going to be granted as the Magistrates will believe the police.
s29(1) - when there is a breach they have to be brought before the court within 24 hours and the court can remand the individual.
Before the police apply to the Magistrates they must give written notice of the intention to apply to the person to whom the order will be addressed – this is a DVPN. Must be issued by a Superintendent or above and can only be issued if they consider that the criteria for applying to the Magistrates Court are made out. They must be satisfied that there has been used or threatened violence and it’s necessary to seek a DVPO. |
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New Police Powers: Domestic Violence Protection Orders (4) |
DVPN allows arrest without a warrant by a constable – s25(1)(b), as does a DVPO – s28(9).
S25(1) – when arrested the individual must be brought before Magistrates within 24 hours.
If someone is arrested when there is only a DVPN they must be brought before a court within 24 hours – s26.
There is a question of whether third party applications should be allowed and, if so, in what form? Are the police the right agency to be empowered to act in this way? |
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The domestic violence disclosure scheme |
It’s been running for about 18 months now. No statutory basis but sometimes called “Claire’s law” after a woman killed by her violent partner.
Anybody can ask their local police force if a particular person constitutes a risk e.g. have they got a history of domestic or any other violence. Police are only obliged to provide the information to someone they believe to be at risk themselves. Meant to consult other police forces, social services and other agencies and have two weeks to respond to requests. |
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The Forced Marriage (Civil Protection) Act 2007 |
Act has been in force since November 2008 and has added parts to the Family Law Act 1996, namely s63(A)-(X).
s63(M) - court may make a forced marriage protection order either to protect someone at risk or to help someone who has already been forced into a marriage.
If you are the person at risk you may apply to the court yourself. It’s also possible for a relevant third party to apply on behalf of the person at risk. Only one relevant third party at the moment if we look at Family Law Act 1996 (ForcedMarriage) (Relevant Third Party) Order 2009 and they say it is social services. |
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The Forced Marriage (Civil Protection) Act 2007 (2) |
We know that the relevant third party criteria is exhaustive because of Bedfordshire Constabulary v U [2013] – police tried to enforce a forced marriage order that a girl had applied for herself after she got married but court said they couldn’t because they’re not a relevant third party, they would have to seek leave. But the court found she was happy and it was not a forced marriage so no case anyway.
Orders may be made inter parte or ex parte - reasons for an ex parte order are the same as for the other domestic violence orders.
Powers of arrest can be attached - s63(H).
Criteria for the making of the order - s63(A). |
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The Forced Marriage (Civil Protection) Act 2007 (3) |
What can the order do? s63(B)- may contain prohibitions, restrictions or requirements or such other terms as the court considers appropriate.
Orders have extraterritorial effect - s63(B)(2).
s63(S) -applicable to any sort of marriage - religious marriages i.e. not legally recognised marriages as well as legally recognised marriages. Would even apply to a non-marriage it seems.
Breach of an order is contempt of court - Bedford Constabulary. But since 2014 the Anti Social Behaviour, Crime and Policing Act - s63(C)(A) - breach of a forced marriage protection order is now a criminal offence. |
