The Law

Protection from violence under the civil law

SUMMARY

Over the last 20 years, the need for better protection from domestic violence under the civil law has been highlighted through a number of reports and enquiries; research has shown that injunctions and protection orders were more often breached than not, and that enforcement was virtually impossible.

Abused women face a number of problems within the legal process: access to legal representation; lack of specialist services or interpreters for Black and ethnic minority women; the trauma of the court process; the lack of training for court staff on the impact of domestic violence on women and children and the reasons why many women stay with or return to a violent partner.

A review of the law by the Law Commission led to recommendations for change, supported by many statutory and voluntary bodies, and eventually the introduction of the Family Law Act 1996, Part IV in October 1997.

Part IV of the Family Law Act 1966 provides a single set of remedies available in all Family Courts including the High Court, County Court, and Family Proceedings (Magistrates) Court. There are two main types of orders under the Act: occupation orders, which regulate the occupation of the family home and non-molestation orders, for protection from all forms of violence and abuse.

Eligibility for orders under the Family Law Act 1996 Part IV depends on the type of order, and the relationship between the applicant and the other party (the respondent). The Act considerably extends the categories of people who may seek protection. It introduces the new concept of 'associated persons'.

Non-molestation orders reproduce and extend the previous powers of the courts to make orders prohibiting a person (the respondent) from molesting another person associated with him or any relevant child.

An occupation order regulates the parties' occupation of their present, former or intended home and replaces all previous legislation. An occupation order may take a number of forms, including, for example enforcing the applicant's right to remain in the house or restricting the respondent's right to occupy the house. Occupation orders may be granted under five different sections of the Act depending on the nature of the relationship between the parties and whether the applicant has an existing right to occupy the home.

The Court must consider a number of different criteria in deciding whether to make an occupation order including the respective housing needs and resources, the respective financial resources, the likely effect of the order on the health and safety, and well-being of the parties or any relevant child, the conduct of the parties in relation to each other and otherwise.

The Act also introduces the 'balance of harm' test, which in some cases will oblige the Court to make an order. In applications by those entitled by legal right to occupy the home, it is mandatory for the court to apply the test, the results of which override other criteria.

The court can also make ancillary orders to occupation orders, imposing obligations on either party with regard to repairs and maintenance, discharge of rent or mortgage, or other payments, as well as use or care of possessions or furniture

A court may make 'ex parte' non-molestation or occupation orders (without the normal period of notice to the respondent of the proceedings) if it considers it just and convenient to do so.

A court may accept an undertaking unless a power of arrest would (normally) be attached, i.e. where (physical) violence has been used or threatened.

Powers of arrest must be attached to one or more provisions of a non-molestation or occupation order where the respondent has used or threatened (physical) violence against an applicant or any relevant child unless the applicant or child is adequately protected without a power of arrest.

The Act makes a number of other new provisions including: a specific amendment to the Children Act 1989 which enables the court when making an emergency protection or interim care order, to make an order to exclude the suspected abuser from the house; a provision for children under 16 may also apply for orders if given leave of court to do so; new powers to transfer joint tenancies into one party's name, a remedy not previously available for (heterosexual) cohabitants.

The strengths of Part IV are that it will enable a much larger group of applicants who have been abused, threatened or assaulted by someone with whom they are living or have (or have had) a family-type relationship to gain access to a uniform package of protective remedies in both magistrates and county courts; measures for enforcement have also been strengthened. The legislation is also now more accessible for users, as well as advisers and legal professionals

Its weaknesses are firstly, the loopholes in eligibility: the legislation does not extend to those who have never lived with their abusers, except where there has been a formal promise of future marriage, or if there is a child for whom both are parents or have parental responsibility; equally homosexual partners can only apply for occupation orders if s/he has existing rights to occupy the home (i.e. is a tenant or owner).

Secondly, the impact of certain amendments to the new law will not be clear until tested under case law; in particular the re-introduction of the conduct of the parties as a criterion may mean conduct not related to matters of safety and protection from violence may be a factor when considering whether or not to make an order; equally the fairness of the 'balance of harm test' will also depend on interpretation.

Lastly, improved protection from violence may depend crucially both on access to legal aid, and to its effective enforcement by the police and the courts.

Excerpt from :MAKING AN IMPACT: Children and Domestic Violence, 1999
Marianne Hester, Chris Pearson and Nicola Harwin
London and Philadelphia: Jessica Kingsley Publishers

For a more detailed brief see the Womens Aid website: www.womensaid.org.uk

Protection under the criminal law

SUMMARY

Until very recently the criminal justice system has paid little attention to the needs of women and children experiencing domestic violence. While many women have sought help from the police in an emergency, often unsuccessfully, for others calling the police is not the first option, and is often only a last resort after repeated attacks.

Many abused women are ambivalent about calling the police: they fear they will not be believed or taken seriously. Black women, in particular, are less likely to call the police if they fear racism against themselves or their partner.

The recognition of the need for changes in police practice to both domestic violence and rape led to the first Home Office Circular in 1986, followed in 1990 by a much more substantial Circular to Chief Constables. Now all 43 Forces have explicit force policies on domestic violence and many Domestic Violence Units (or Domestic Violence liaison officers in some areas) have been set up around the country.

The Circular reminded officers that the primary duty was to protect the victim and any children and then consider what action should be taken against the offender. Immediate protection could include referring or taking her to a refuge, as well as liaison with statutory and voluntary agencies for long term support.

The Protection from Harassment Act1997 introduces new measures for protection under both the criminal and civil law, and also provides a new link between criminal and civil law. The provisions include two new criminal offences: the offence of criminal harassment and a more serious offence involving fear of violence. If convicted of either of these offences, there is an additional measure for protection: a restraining order can also be granted by the court, prohibiting the offender from further similar conduct.

The immediate arrest and removal of the abuser by police will often be helpful in providing many women and children with much needed 'breathing space' and time to consider what they should do. Proceeding with prosecution may not, however, always be in their best interests. There are a number of practical and emotional difficulties, and prosecution does not guarantee protection or safety in the long-term as there may be increased danger of reprisals from a vengeful partner or ex-partner.

Effective action under the criminal law may also be undermined by civil proceedings which can force women to have contact with violent men via the children, and by an uncoordinated approach across the criminal and civil courts.

Nevertheless, recourse to the criminal law and the protection of the police and courts could be developed in order to provide more effective protection and redress than is the case at present; examples from the U.S. and elsewhere may herald new initiatives in the UK.

Excerpt from :MAKING AN IMPACT: Children and Domestic Violence, 1999
Marianne Hester, Chris Pearson and Nicola Harwin
London and Philadelphia: Jessica Kingsley Publishers

NB: Since the publication of this book, a number of new criminal justice initiatives in relation to domestic violence are being developed by government and other bodies including for example the introduction of the Crime and Disorder Act and the new funding under the Crime Reduction Programme.

For a more detailed brief see the Womens Aid website: www.womensaid.org.uk