Domestic Violence Notes PDF

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Notes on Domestic violence topic for family law...

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FAMILY LAW PLAN

In respect of domestic violence, critically evaluate the effectiveness of current police powers and legal remedies under the Family Law Act 1996 and the extent to which they provide adequate protection for victims. – 3000 words. A legal definition: "domestic violence means any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.' Government definition: "Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 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.” Not established DV offence. There are similar criminal offences however. Domestic because private, within home, couldn’t be touched by authorities. How common is DV – in 2012/13 700,000 men and 1.2 million women reported having experiences Domestic abuse. 30% women and 16.3% men since age of 16. (Crime Survey for England and Wales, ONS, Feb 2014) 62% of children in households where dv is happening are also directly harmed. (Safe Lives, 2015) 30% of DV starts/intensifies during pregnancy (Department of health, Oct 2004) Protection from harassment act 1997 s1,2,3,4,5&7. -Act provides harassment can include alarming/causing a person distress. Harassment/stalking. Police can now protect victim even before stalker has been arrested. Needs to be course of conduct – Lau and DPP – to rely on harassment provisions. Family Law Act 1996 IV – Non-mol and occupation. S42 (non mol) prevents respondent from molesting applicant or child. No definition of molestation. 42(5) need to protect health, safety and wellbeing of applicant or child. BREACH is criminal offence. Powers of arrest and undertakings DV, Crime and Victims Act 2004. Family Law Act 1996 Legal Remedies -

Non molestation orders 1. Section 42 2. Section 42 (5) 3. C v C (Non-Molestation Order: Jurisdiction) [1998] 1 FCR 11

FAMILY LAW PLAN 4. Johnson v Walton [1990] 1 FLR 350 – Man sent semi-naked pics of girl to newspaper and was molestation as aim was to humiliate. To obtain either order, must be associated person. Who can obtain remedy under FLA 1996. Married, cohabitants, living in same household, relatives – some sort of connection, agreed to marry, agreed to enter into civil partnerships. S44 requires evidence in writing of agreement to marry. This is not usual practice. Intimate relationship of long duration. Part of same family proceedings. Wide net so more people can apply. -

Occupation orders – aim is more severe, can kick someone out of home for significant duration and can be extended. 1. Sections 33, 35, 36, 37, 38 and 39. – Controversial because overriding someone proprietary rights. 2. Balance of harm test- It is complex to get occupation order. BOH test is to show that there is a likelihood of significant harm if order is not made, if order is made and abuser is kicked out, will the abuser then suffer more harm having been removed from the property as the applicant/children would if they weren’t removed from property. (Will abuser suffer too much?) (i) Chalmers v Johns [1999] 1 FLR 392 – Significant harm – Mother and child move out of fam home because husband abusive. Fam home was 5mins from child’s school. New house a mile and half away from school. Would mother and child suffer significant harm if order was not made? NO they would not suffer significant harm, mile and a half is not exceptional. (ii) B v B (Occupation Order) [1999] 1 FLR 715 – Husband kicked out, made homeless. Not attributable to anything wife had done. Failure of local authority. His harm does not need to be attributable to the applicant. (iii) G v G )Occupation Order: Conduct) [2000] 1 FLR 36 – Harm applicant suffers, in terms of it being attributable to the respondent, it needn’t be intentional conduct. (iv) Banks v Banks [1999] 1 FLR 726 – County court decision, limited in terms of precedence. Not appropriate to make occupation order against a woman who is suffering from manic depressive disorder. They are unable to control behaviour, if breach of occupation order it is contempt of court – unfair to hold woman with some medical condition in contempt of court.

Powers of arrests and undertakings If court makes occupation order-breach-contempt of court as it is civil legislation. However, if the person has used or threatened violence against applicant or child, the court can attach a power of arrest which means that although civil remedy, police can arrest if they have breached. Court can attach this on top of occupation order, Undertakings – Court can accept this from applicant in any case where it has power to make non-mol or occupation, instead of making non-mol order or occupation order the applicant can undertake to the abuser that they won’t do this again, then no order but undertaking. Alternative to orders.

FAMILY LAW PLAN

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Family Law Act 1996 Section 46(1) and 46(4) – order of court LOOK AT s47(3)(a) – No undertaking if NMO necessary to protect applicant or child

Although civil remedy, Domestic Violence, Crime and Victims Act 2004: Nonmolestation order has criminal penalties where it is breached. Crime and Security Act 2010 – Police Powers Domestic Violence Protection Notice – requires someone to leave the property for 48 hours, to allow them to work out whether they need DVPO. Domestic Violence Protection Order – Get in magistrates court, if threat of violence, police get power to remove abuser. Domestic Violence and Children -

Contact with a violent parent - Re L: Re V; Re M; Re H (Contact: Domestic Violence) [2000] 2 FLR 334 – DV is not a bar to allow chid to see parents but is important factor in balancing exercise. 2 stages by court – If DV is alleged, court has to decide whether allegations are made out, then considers risk involved and impact of lack of contact of child to the benefits of contact.

Domestic Violence Disclosure Scheme – Set up 5/6 years ago following death of Claire wood, murdered by partner. Campaign to enable victims or those entering into relationships to know about the persons criminal past. Allows individual a right to ask. Police go through stages and right to know is police decision allowing them to know whether to start relationship or not. Legal duties of the police - Disparities in use of DVDS across England and Wales - Areas of Law affecting the scheme - Evaluation of its success so far Known as “Claire’s Law” Right to ask/Right to know Serious Crime Act 2015 – New criminal offence Criminalises coercive and controlling behaviour in intimate or family relationships - closest offence to DV. Includes non-violent behaviour Max penalty – 5 years imprisonment and fine Very few prosecutions of this new offence, how effective is it really? Future DV legislation? New Domestic Violence and Abuse Bill

FAMILY LAW PLAN Undergoing consultation Aims to increase convictions for DV/Protection for victims May potentially include the DV disclosure scheme Areas of debate: CIVIL REMEDIES Effectiveness of non-molestation orders: Breaching the order is a criminal offence (s42a Family Law Act 1996) – Does this disempower the victims? LOOK AT Hitchings, E. ‘A consequence of blurring the boundaries’, does it take pressure off the victim to not prosecute? Criminal breach – police have power to arrest – even if victim objects, police can still bring proceedings. Takes power away from victim by making it criminal offence. Concerns over the use of occupation orders: LOOK AT s33(7) and s33(6) FLA – BALANCE OF HARM TEST – If do not meet BOH test. If test not met, court can still make OO considering (s33(6)) Application of statutory test raises concerns Are occupation orders too difficult to obtain Effect is to override proprietary rights. Are they therefore arguably only justified in exceptional circumstances? Statute also requires harm to be 'significant' (s33(7)) Does the statutory criteria and application by the courts risk leaving the victim unprotected? HUMAN RIGHTS – ECHR Articles Art 2 – Right to life Art 3 – Protection from inhuman or degrading treatment Art 8 – Respect for private and family life Art 6 – Right to fair trial Art 14 – Prevents discrimination International HR law – UN treaties -

Convention on the elimination of All forms of discrimination against women Approved by UK in 1986

Criminal Law treatment of DV -

Same offences apply – no differential treatment because it is ‘domestic’ Exception: Serious Crime Act 2015 – ‘coercive control’...