Domestic Violence Law

(a)

Prior to the Family Law Act 1996 (FLA 1996), the remedies available relating to domestic violence under the old law, as indicated by Standley (1997), were provided by the Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976), the Domestic Proceedings and Magistrates' Courts Act 1978 (DPMCA 1978) and the Matrimonial Homes Act 1983 (MHA 1983), which were labelled by Lord Scarmen as the ‘hotchpotch of enactments’ in Richards v Richards, and these gave the civil courts jurisdiction to grant injunctions to protect the victims of domestic violence. However, the law did face criticism as being confusing and complex. This situation led the Law Commission in its report, Domestic Violence and Occupation of the Family Home, published in May 1992, to propose reforms. The Law Commission included a draft bill which provided the foundation for the provisions of FLA 1996 relating to domestic violence, specifically Part IV of the Act, which came into force on 1 October 1997.

One major problem under the old law was with the court’s jurisdiction to grant an ouster order. Barnett (1997) believed that, prior to Richards, most practitioners as well as the judges had a view that applications for ouster orders within divorce proceedings to evict a spouse from the matrimonial home was made pursuant to the ‘court’s inherent jurisdiction.’ Cases such as Silverstone v Silverstone and Robinson v Robinson are appropriate examples. Then the Richards case was decided where the House of Lords in its decision set out the criteria of s 1(3) of MHA 1983 to be applicable in any case where spouses seek ouster orders, whether under that Act, the DVMPA 1976, or in pending matrimonial proceedings. There is no doubt that since Richards, a spouse seeking to exclude the other would be invoking the jurisdiction under MHA 1983 and so, the power to make such an order is given by that Act. Verduyn (1996) in an article pointed out that the MHA 1983 and the DVMPA 1976 did cover the inherent jurisdiction of the court and the jurisdiction under the s 37 of Supreme Court Act 1981 (SCA 1981), conferred on the county courts by the s 38 of County Courts Act 1984, to grant an injunction to protect a legal or equitable right, where the court felt was just and convenient.

However the decision in Richards did have concerns. The Law Commission pointed out that the criteria did not apply for exclusion orders under DPMCA 1978 because of its own set of criteria which was based on violence. Barnett (1997) stated strongly, supporting his own point of view with reference to the article by Verduyn (1996), that despite the landmark decision in Richards, there still seemed to be confusion on whether the courts had an inherent jurisdiction power to grant an ouster order specifically in relation to the protection of children. Besides, not all cases fell within the scope mentioned in Richards, for example, applications made after a decree absolute. Cases such as Wilde v Wilde and Lucas v Lucas are such examples. A relevant important decision of a pre-Richards case Quinn v Quinn is worth mentioning, where relief was granted after decree absolute, the decision being based upon the existence of an inherent jurisdiction necessary to protect the interest of children that Ormrod LJ mentioned in the leading judgment. The Wilde decision was based on Quinn. In Wilde the Court of Appeal upheld the exclusion of the ex-husband with the ouster clause from the former matrimonial home on the same grounds as Quinn and held that the ex-wife had been granted care and control of the children and had the right to perform that function, so the court might also have jurisdiction under s 37 of SCA 1981. In Lucas, there was no jurisdiction to make orders in relation to children under the Children Act 1989 because the children were over 16 years of age. The court however invoked s 37 of SCA 1981 on the fact that the property was in the sole name of the ex-wife and so she could herself legally evict her ex-husband. All the above examples show how the approach in Richards had limitations when divorced spouses were involved.

The Law Commission addressed that the old law did not provide protection for a lot of people because they fall outside the scope of the different Acts. For example, DVMPA 1976 applied to spouses and cohabitants only, but not to divorced spouses or former cohabitants, though a divorced spouse could apply under the Act only if she was living together with her former husband as a husband and wife after the decree, which would mean that she qualified as a cohabitant. As for former cohabitants, alternatives could be in other proceedings such as tort, a more clumsy procedure. DPMCA 1978 and MHA 1983 applied only to spouses. This situation shows that there were many options for the spouses, a few options for cohabitants and the others were not adequately protected, all of which meant that there were restrictions on the classes of people entitled to claim relief. So the Law Commission proposed a drastic reform in the categories of applicants. The FLA 1996, as a result, introduced the concept of ‘associated persons’ found in s 62, which solved the problem of the restrictions of the type of applicants. S 62 is a much wider concept than the old law and included the former cohabitants, former spouses, those who have lived in the same household (other than as a mere employee tenant, lodger or boarder), the concept of relevant child (s 62(2)) as well as many others who would be able to use the FLA 1996. Part IVprovides two categories of orders that can be made in relation to associated persons and relevant child which are ‘occupation orders’ and ‘non-molestation orders’ (Douglas and Lowe, 2006, p.224).

Also under the old law, there was no remedy in the magistrates’ court for non-violent harassment. The DPMCA 1978 remedies in a magistrates’ court were only available in cases dealing with actual violence or threats. This was clearly unfavourable in situations where the ‘degree’ of harassment failed to amount to actual violence because then spouses, who had been the victims of harassment, could not seek assistance in Magistrates’ Court. So the Law Commission proposed that relief to prevent molestation should be available to all courts so that the victims did not have to wait for the situation to turn into complete violence. S 42 of FLA 1996, hence, is introduced which provides for ‘non-molestation orders’ to be available to protect applicants who fall within the category of ‘associated person’. One effect of this section is that the court has the power to make such orders if it feels necessary to do so, even if it is hearing other family proceedings. Stretch (2007, p.133) pointed out that during the old law, much more importance was given to the nature of the respondent’s violent conduct but now, by virtue of s 42(5), there is more emphasis on the applicant as the court is required to consider all the circumstances of the case including the health and safety of the applicant and relevant child when making an order. Also, the situation is further improved because the High Court, county courts and the magistrates’ court all now have jurisdiction to make non-molestation orders as well as occupation orders, subject to the Lord Chancellor’s power to specify that certain types of proceedings be commenced in a specified level of court.

The fact that different principles applied to different classes of people was clearly complicated. According to Verduyn (1996), it was unnecessary to differentiate in such a way and concluded that since the jurisdiction to grant an ouster order was complex, the reform would only be better as soon as it came. This view was made in Richards by Lord Scarmen around 12 years ago before Verduyn (1996) expressed his views. The remedies under the old law were labelled by the Law Commission as being ‘complex, confusing and lacking integration’ because, as rightfully mentioned by Herring (2007), and as shown above, these statutes had different principles to be applied, their methods varied from court to court and most importantly, their application were limited to specific relationships, in addition to providing different kinds of remedies. Hence, The Law Commission recommended to abolish the variety of statutes and replace them with a single, simple, statutory formula applicable to all courts. Part IV of FLA 1996 is the resulting formula that aimed to improve this situation.

(b)

Though the FLA 1996 did simplify the law relating to domestic violence, it did not provide greater protection for the victims, often giving unsatisfactory results (Humphries, 2001). In order to improve the confidence of the victims that the law would give them the required protection they need, the Government proposed that both the civil system as well as the criminal system needed to complement each other effectively in their work. Hence, the ultimate result came in the form of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) which made fundamental changes to the law relating to domestic violence, in particular its effective changes to Part IV of the FLA 1996.

Section 1 of the DVCVA 2004 inserted a new s 42A which now creates an offence for breaching a non-molestation order. Hill (2005) viewed this as the most remarkable change made by the DVCVA 2004 to the FLA 1996. Sub-section 1 provides that a breach of a non-molestation order ‘without reasonable excuse’ is a criminal offence. This offence is an arrestable offence by virtue of the maximum 5 year prison term(s 42A(5)), within the meaning of s 24 of the Police and Criminal Evidence Act 1984 (PACE 1984). The Explanatory Notes, which came with the 2004 Act, explained that before the 2004 Act, a breach of an order was only punishable as a civil contempt of court. The victim had to seek an arrest warrant in the civil courts if no power of arrest was attached to the orders. The Government even proposed that this system needed an improvement. Thus, the new s 42A neither requires the victim to seek an arrest warrant in the civil courts nor does it require the court to attach a power of arrest to an order. Rather, s 42A now always allows the police to arrest for breach of a non-molestation order. Under s 42A(2), which relates to without notice orders, an individual would only be guilty of a criminal offence if he is aware of the existence of the order.

Also, a person cannot be convicted of the new offence and at the same time be punished for contempt of court by virtue of sub-sections 42A(3) and (4). This change however has its drawbacks (Bird, 2005). Upon the arrest of a respondent, there is no way to prevent the victim beginning contempt proceedings, and there is no way to prevent prosecution of an alleged offender where contempt proceedings are pending.

The DVCVA 2004 also amended s 47(2) of the FLA 1996 which provided that a power of arrest must be attached to one or more provisions of a non-molestation order or an occupation order if it appeared to the court that the respondent had used or threatened violence against the applicant or a relevant child, unless the court is satisfied that the applicant or child will be adequately protected without it. One of the reasons why Humphries (2001) thought the FLA 1996 did not provide greater protection for the victims was the often unsatisfactory use of s 47 by the courts. The rationale was that when judges made non-molestation orders, they were very much unwilling to attach a power of arrest to certain parts of the order, even if they attached it to a part of an order concerning physical violence because it would give too much power to the applicant. The case of Chechi v Bashir, involving a land dispute concerning brothers, is such an example where the circumstances of the case persuaded the court not to attach a power of arrest as it would inspire contempt proceedings. Paragraph 38 of Schedule 10 to the DVCVA 2004 amended s 47 of FLA 1996 by removing the power to attach a power of arrest to a non-molestation order but it will still remain important to attach a power of arrest to an occupation order under s 47. The reason given for this is that breach of a non-molestation order has become a criminal arrestable offence and this change removes any confusion the police might have in relation to deciding whether the person arrested should be dealt with under the previous procedure of bringing before the family court within 24 hours or as a criminal defendant to be dealt with in the magistrates court (Bird, 2005). It is also worth noting that since common assault is now included in the definition of arrestable offence by virtue of s 10 of DVCVA 2004, the police has the power to arrest if there is reasonable grounds to believe that there is a breach of non-molestation order. Hence, overall there should not be any confusion for the police as to whether they had a power of arrest or not.

The new s 42A and amendment to s 47 mentioned above reflect the aim of the Government’s proposals to improve enforcement and hence, protection for the victims of domestic violence. There are, however, disadvantages to these changes. The explanation given by Soni (2007) does show that there are problems. The criminalisation of the breach means that if the respondent is found guilty, he will have a criminal record for life. Also, the changes have actually led the victim to have less control in the matter. Previously, when a power of arrest was given, the victim had the choice to call the police and cause the arrest of the respondent, thus the victim having the choice of whether to proceed in the criminal system or not. It was important to those victims who did not want to punish the respondents, who may be their spouses, in the criminal courts. But the new effective changes mean that after an arrest, it is the Crown Prosecution Service (CPS) who will decide whether to prosecute for the breach of the order. If the CPS decides the matter not to progress, the applicant may however apply to the civil courts for a committal for breach of the order. But if the CPS decides to take the matter to criminal courts which are open courts, then it will be severely disadvantageous to those victims from an ethnic minority community because of their concerns about issues like bringing 'shame' and 'dishonor' to the family.

Due to the changes to s 47 mentioned above, s 46 of FLA 1996, concerning undertakings, was in need of a change and so was amended by paragraph 37 of Schedule 10 to the DVCVA 2004. The new s 46(3A) means that a court cannot accept undertakings in situations where a non-molestation order is necessary as the respondent has either used or threatened violence against the applicant or a relevant child, in which case the breach of the order may be punished as a criminal offence.

Change was made to s 41 of the FLA 1996, which applied where the parties are cohabitants or former cohabitants. Section 41 provided that where the court is required to consider the nature of the parties’ relationship, it is to have regard to the fact that they had not given each other the commitment involved in marriage. This section was rarely used (Hill, 2005) and so was meaningless (Bard and Ward, 2005). Therefore, s 2(1) of DVCVA 2004 rightfully repealed s 41 of the FLA 1996.

Also, paragraph 36 of Schedule 10 of DVCVA 2004 inserted a new sub-section (4A) into s 42 to remind the court its power to make non-molestation orders to benefit those who need the protection, when it is considering to make an occupation order.

Section 36 of FLA 1996 governs applications for an occupation order when one cohabitant or former cohabitant is entitled to occupy a dwelling house and the other is not. Among all the matters to which the court must have regard, sub-section (6)(e) required the court to consider the nature of the parties’ relationship. Section 2(2) of DVCVA 2004 amends the sub-s (6)(e) so that the court would now have to consider specifically the level of commitment of the relationship in addition to the nature of the parties’ relationship.

Section 62(3) of Part IV, containing the definition of ‘associated persons’, was one of the concerns in the FLA 1996. The related problems were recognized by the Government in its consultation paper on domestic violence. The Government mentioned that as the FLA 1996 defined cohabitation in terms of a man and a woman, the cohabiting couples did not include ‘same-sex’ couples. Perhaps this was the result of the recommendation by the Law Commission in its report that the availability of non-molestation orders should be limited to those who were family related to the respondent or related in a way that resembles a similar relationship. The Law Commission favoured this sort of restriction as it was thought that it would be inappropriate to allow non-domestic relationships to pursue this jurisdiction.

Even though the ‘associated person’ criteria was thought to be wide enough, the problem mentioned still existed. Same-sex couples could not seek occupation orders under s 36 or s 38 which heterosexual couples could. So, relating to ‘cohabitation’, amendment of the ‘associated person’ criteria was proposed by the Government so that same level of protection be given to the same-sex couples as was given to cohabiting heterosexual couples. As a result, s 3 of DVCVA 2004 was introduced to replace the existing definition of cohabitants in s 62(1)(a) which, after the amendment, meant that the category of cohabitants now included homosexual and lesbian couples, who would be able to use s 36 or s 38 to apply for occupation orders as cohabitants or former cohabitants in a same-sex relationship where appropriate.

The view given by Conway (2004) about the above amendment was that it would bring an end to the discrimination faced by the same-sex partners who were not able to remove the abuser from the home. This change was perhaps called for because there are authorities which suggest that people of homosexual orientation should have the same rights as people of heterosexual orientation. The case of Da Silva Mouta v Portugal submitted that under the European Convention on Human Rights, it was unlawful to discriminate based on sexual orientation. According to Ghaidan v Godin-Mendoza, people of homosexual orientation should be treated in a similar way to that of people of heterosexual orientation because they are not different. Bird and Ward (2005) rightfully stated that the reasonings used in cases which dealt with the definition of ‘cohabitation’ such as Crake v Supplementary Benefits Commission, Re J(Income Support: Cohabitation), and G v G (Non-Molestation Order: Jurisdiction) should not be difficult to apply to same-sex couples. So it can be safely concluded that it would not be difficult to use the provision containing the new definition of cohabitation.

The Government also mentioned that the FLA 1996 did not allow non-molestation orders to those who were in a relationship but never lived together. So s 4 of the DVCVA 2004, addressing the problem, widened the definition of ‘associated persons’, to include couples who are or were in an ’intimate’ relationship of ‘significant duration’, for example a boyfriend and his girlfriend who actually had not lived together. Hill (2005) gave the view that the main concern relating to this was the span of time that would actually cover the ‘significant duration’ because while a group of people might think of a relationship of several months to be of significant duration, others might think of several days as significant duration. Herring (2007) however believed that borderline cases may be included in the definition, especially considering the decision in G v F (Non-Molestation Order: Jurisdiction). Ultimately, the court will decide on individual cases whether a relationship falls within the category because there is no proper body of case law (Soni, 2007).

The Government’s view in providing more protection to the victims of domestic violence clearly is demonstrated by the changes made to the FLA 1996 by the DVCVA 2004. Gore (2007) submitted that the changes made were a positive step by the Government because the new provisions would give better protection of domestic violence to the victims, highlighting that the society is now more cautious about matters of domestic violence. However, thinking practically, it would only be right to say that a lot will depend on how the police and the CPS effectively use the new changes in law in addition to the combined efforts of the civil system and the criminal system.

BIBLIOGRAPHY

Textbooks:

Bird, R. & Ward, R. (2005) 'Domestic Violence: Non Molestation Orders, Harassment, Restraining Orders, Occupation Orders', Domestic Violence, Crime and Victims Act 2004: a practitioner's guide. Bristol: Jordans, pp. 7-23.

Douglas, G & Lowe, N (2006) 'Domestic violence', Bromley's family law. 10th edn. London: Butterworths.

Herring, J (2007) 'Domestic violence', Family Law. 3rd edn. Harlow: Pearson, pp. 258-305.

Stretch, R (2007) 'Domestic Violence and Occupation of the Home', Family Law Q&A. 4th edn. London: Routledge-Cavendish, pp.129-151.

Articles:

Barnett, K. (1997) 'Inherent jurisdiction,ouster orders and children', Family Law, February, pp. 96-103.

Bird, R (2005) 'The Domestic Violence Crime & Victims Act: what are the changes?', Family Law Week, 2005 archive [Online]. Available at: http://www.familylawweek.co.uk/library.asp?i=323 (Accessed: 9 December 2007).

Burton, M (2004) 'Domestic violence-From Consultation to Bill', Family Law, February, pp. 128-132.

Conway, H.L (2004) 'The Domestic Violence, Crime and Victims Bill', Family Law, February, pp. 132-135

Gore, S. (2007) 'The Domestic Violence, Crime and Victims Act 2004 and Family Law Act 1996 Injunctions', Family Law, August, pp. 738-742

Hill, R.N. (2005) 'The Domestic Violence, Crime and Victims Act 2004', Family Law, April, pp. 281-284.

Humphries, M. (2001) 'Occupation Orders Revisited', Family Law, July, pp.542-544.

Soni, B (2007) 'Domestic Violence and Family Law: A New Era', Family Law Week, August [Online]. Available at: http://www.familylawweek.co.uk/library.asp?i=3052 (Accessed: 09 December 2007).

Standley, K (1997) 'Domestic Violence', Cases and materials on family law. London: Blackstone, pp. 201-227.

Verduyn, A (1996) 'Ouster Orders Now', Family Law, January, pp.36-37.

Others:

Great Britain. Home Office. (2003) Safety and Justice: the Government's Proposals on Domestic Violence. London: The Stationery Office. Available at: http://www.archive2.official-documents.co.uk/document/cm58/5847/5847.pdf (Accessed: 24 Nov 2007).

Great Britain. Home Office. (2005) Explanatory Notes to the Domestic Violence, Crime and Victims Act 2004. London: The Stationery Office. Available at:http://www.opsi.gov.uk/acts/acts2004/en/ukpgaen_20040028_en.pdf (Accessed: 10 December 2007).

Great Britain. Law Commission. (1992) Family Law: Domestic Violence and Occupation of the Family Home, Law Com No. 207 . London: HMSO.

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