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Domestic Violence Update – the latest developments practitioners need to know about

Mandip Ghai, solicitor and legal officer, with Rights of Women, updates practitioners on developments in the prevention of domestic violence.

Mandip Ghai, Solicitor and Legal Officer, Rights of Women

In November 2010, the Home Office published Call to end violence against women and girls which sets out the cross-government strategy for tackling violence against women and girls (VAWG).  The paper identified four key areas of focus: the prevention of violence, the provision of support, working in partnership, and ensuring perpetrators are brought to justice.

Various measures have been implemented since then as part of the action plan to tackle violence against women and girls. This update will summarise those measures and other recent and forthcoming developments to civil and criminal law remedies.

As domestic violence is an issue which disproportionately impacts upon women, this article refers to the victim as female and the perpetrator as male.  However, the legislation and measures referred to in this article also apply to violence against men, and violence within same sex relationships, unless indicated otherwise.


Cross government definition of 'domestic violence'

In March 2013, following consultation, the Home Office introduced a new official definition of domestic violence to include young people aged 16 to 17 and coercive or controlling behaviour.  The new definition of domestic violence now reads:

'Domestic violence' includes any incident or pattern of incidents of controlling, coercive or 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. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.

'Controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

'Coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

This definition, which is not a legal definition, includes so called 'honour' based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
The definition is to be used across all government departments to inform their policies and procedures.


Domestic violence protection notices and domestic violence protection orders

The government identified as a key loophole cases where a suspected perpetrator of domestic violence is arrested following an incident of abuse, but not charged with an offence.  The perpetrator is released and able to return to the scene of abuse within a very short space of time, leaving the victim vulnerable whilst she makes the decision to leave or makes arrangements to take out a civil injunction. 

Two new measures were introduced under Crime and Security Act 2010 to protect victims in the immediate aftermath of reporting domestic violence incident: domestic violence protection notices (DVPNs) and domestic violence protection orders (DVPOs).  Police forces have been implementing the roll-out of these new powers since 8 March 2014.

The provisions of DVPNs and DVPOS are similar to protection of the kind one can obtain using non-molestation orders and occupation orders.  They can refer to particular acts of molestation and / or molestation generally.  If the perpetrator and the victim live together the DVPN or DVPO can also exclude the perpetrator from the home or from coming within a specified distance of the home.

It is important to remember that these a temporary measures, designed partly to allow the victim time and space to think about long term options, such as applying for a civil injunction. 

DVPNs and DVPOs which are in force or made within the last two years can also be used as evidence of domestic violence for access to family law legal aid. 

DVPNs
Sections 24 to 26 of the Crime and Security Act 2010 govern DVPNs.

Police officers (not below the rank of superintendent) can issue DVPNs against a person aged 18 or over ("P") if they have reasonable grounds to believe that:

a) P has been violent towards, or has threatened violence towards, an associated person, and

b) the issue of the DVPN is necessary to protect that person from violence or a threat of violence.

Two people are associated if they are associated within the meaning of s.62 of the FLA 1996.

There is no current guidance on necessity to protect.  The Interim Guidance Document for Police which was issued to assist officers during the pilot scheme from June 2011 to June 2012 states that consideration should be given to:

Before issuing a DVPN, the authorising officer must, in particular, consider:

a) the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),

b) the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN. The officer can, however, issue the DVPN where the person being protected does not consent to the DVPN,

c) any representations made by P as to the issuing of the DVPN, and

d) if P is being excluded from the home, the opinion of any other associated person who lives in the premises.

DVPNs are temporary measures, and a police constable must apply for a DVPO within 48 hours.

DVPOs
Sections 27 to 29 of the Crime and Security Act 2010
govern DVPOs.

If a DVPN has been issued, a police constable must apply to the magistrates' court for a DVPO.  The hearing must take place within 48 hours of the DVPN being served upon P.  P must be given notice of the hearing.

The court can make a DVPO if two conditions are met:

  1. The court is satisfied on the balance of probabilities that the perpetrator has been violent or has threatened violence to an associated person
  2. The court thinks that making the DVPO is necessary to protect the victim from violence or the threat of violence.

Before granting a DVPO, the court must, in particular, consider:

a) the welfare of any person under the age of 18 whose interests the court considers relevant to the issuing of the DVPO (whether or not that person is an associated person),

b) the opinion of the person for whose protection the DVPO would be issued as to the issuing of the DVPO. The court can, however, issue the DVPO where the person being protected does not consent to the DVPO,

c) if P is being excluded from the home, the opinion of any other associated person who lives in the premises.

DVPOs last for a minimum of 14 and up to a maximum of 28 days

In the event of a breach, a police constable can arrest the perpetrator without a warrant if the constable has reasonable grounds for believing that he has breached the DVPO.  The perpetrator should be brought before a magistrates' court within 24 hours.  DVPOs are civil orders, so breaches are dealt with under Section 63(3) of the Magistrates' Courts Act 1980.Thus far, there have been reports of one man being successfully prosecuted for breaching a DVPO and he was jailed for seven weeks.

Rights of Women welcomed the introduction of these measures which should help plug an important gap and takes the pressure off the victim to leave the family home rather than the perpetrator.  There will need to be a concerted effort to ensure that the measures have the intended impact on the safety of victims of domestic violence. The onus is on police officers to identify the risk and issue the DVPN.  Given that the response of some police officers to domestic violence incidents remains a cause for concern, these new measures will only be effective if the police are provided with additional training not just on their proposed new powers, but on domestic violence and the dynamics of violent relationships more generally to ensure that the orders are used appropriately and safely.

According to the impact assessment, key to the success of DVPNs and DVPOs will be the caseworker who should make contact with the victim, offer support and outline the options available to her as soon as a DVPO is issued. This might include advice on applying for domestic violence injunctions or on criminal proceedings.  It was envisaged that this role could be taken on by existing Independent Domestic Violence Advocates (IDVAs) or roles could be "grown" within existing specialist support services. There will also need to be significant resources and funding allocated to ensure that there are sufficient caseworkers available if DVPNs and DVPOs are to stand a chance of meeting their potential.


Domestic violence disclosure scheme (Clare's Law)

The domestic violence disclosure scheme (also known as Clare's Law) has been in place since 8 March 2014.  Guidance on the scheme can be found here.

Under this scheme, an individual has the right to ask the police whether a current partner represents a risk of violence (in private if necessary).

Concerned third parties (such as parents, neighbours, friends) can also apply; however it may be that the police disclose the information to the person at risk of violence or a person who can protect her, as opposed to the third person.

Individuals also have the right to know whether a current partner represents a risk of violence.  This means that if the police receive information that may impact the safety of the victim, they can disclose information to the victim and / or the persons who are best placed to protect the victim.

Information should only be shared where it is legal, necessary and proportionate.  The police will meet with other safeguarding agencies before disclosing information.  The disclosure should contain enough information to enable the victim to make an informed decision about the relationship.  She should also be provided with a robust safety plan tailored to meet her needs.

The likely impact of this measure in preventing domestic violence is dubious. It relies upon a) previous victims of the perpetrator making a complaint to the police and the perpetrator being prosecuted and convicted, and b) potential victims foreseeing abuse and contacting the police.  This means that the scheme is likely to capture a minority of victims. Further, many perpetrators are never convicted.  Women who use the right to know scheme and are told that there is no history of abuse may be left with a false sense of security.


Forced marriage

As of 16th June 2014 it is a criminal offence to force someone to marry.  Section 121(1) of the Anti-social Behaviour, Crime and Policing Act 2014 provides that an offence is committed if a person:

a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and

b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.

It is also an offence to practise any form of deception with the intention of causing another person to leave the United Kingdom and be forced into marriage (see s121(3), Anti-social Behaviour, Crime and Policing Act 2014).

Breaching a forced marriage protection order is also a criminal offence (see s 120, Anti-social Behaviour, Crime and Policing Act 2014).

The elements of the offences seem rather convoluted. The CPS will have to prove beyond a reasonable doubt that some form of violence, threat or coercion has taken place, and show that this has caused the victim to enter a marriage, and that the perpetrator knows or ought to know that this force would cause the victim to enter into the marriage.

The government has provided detailed guidance on forced marriage for professionals.  The guidance makes clear that there should be a victim led approach to ensure their safety, and action that should (and should not) be taken to support them.

It is important to remember that there are already a range of criminal offences that often occur when someone is forced to marry such as assault, harassment, theft of passports, kidnapping and rape.  Perpetrators can be charged with these offences as well as or instead of the forced marriage offences.

The government's strong stance on forced marriage is encouraging. However, as with other forms of VAWG, prosecution alone will only go so far in addressing the prevalence and impacts of forced marriage. Whilst the move to criminalise forced marriage sends a powerful message that forced marriage will not be tolerated, many of the leading support organisations for survivors of forced marriage, such as Ashiana Network, have raised concerns regarding victims being deterred from reporting and the challenges the police and CPS will face if victims don't want to give evidence or support a prosecution due to pressure from the perpetrators or fear of criminalising family members.

There have been no prosecutions for forced marriage, as far as the writer is aware, since the offence came into force on 16th June 2014.  It will be interesting to see if the new criminal offences are utilised or whether they will remain unused, like the criminal offences relating to female genital mutilation, for which there is yet to be a successful prosecution.


Public consultation on prosecuting cases of domestic violence

The Director of Public Prosecutions issued a consultation document on the prosecution of domestic violence cases on 14th May 2014. The consultation document helpfully consolidates existing guidance on prosecuting cases of domestic violence.  It sets out the cross-government definition of domestic violence introduced in March 2013 (see above) which includes coercive and controlling behaviour, and should be used by police to identify cases if domestic violence.  The document also includes guidance on the approach that should be taken when dealing with cases involving domestic violence, the offences available to charge the perpetrator, evidence gathering and sentencing.

The deadline for responding to the consultation has now passed. A summary of the consultation responses will be published in Autumn 2014. There will be a particular focus on the following:

  1. Whether the CPS approach to understanding the context of domestic violence is right and well-informed;
  2. Whether the current guidance has identified the right potential lines of enquiry for evidence gathering and the right public interest factors to be considered when the CPS makes a charging decision;
  3. The CPS's approach to cases where the victim is not willing to support a prosecution;
  4. Managing safety and support issues for victims;
  5. Whether the current guidance demonstrates sensitivity and understanding to the issues which may be experienced by victims from different groups.

Rights of Women and Women's Aid Federation of England are pleased that the guidance identifies the key issues for women survivors of domestic violence going through the criminal justice system. However, the guidance lacks analysis of what the organisations consider the gendered nature of domestic violence, and they suggest the guidance  should be amended to include this as a running theme. There also needs to be further information on how the guidance will be implemented, for example, by training local prosecutors.


Consultation on strengthening the law on domestic abuse

The Home Office recently announced a consultation to consider whether there should be a specific offence which captures patterns of coercive control and behaviour in intimate relationships, in line with the Government's non statutory definition of domestic abuse.

Currently, there is no specific offence of domestic abuse. However, there are a range of existing offences which capture domestic abuse.  The Protection from Harassment Act 1997 (POA) protects victims from stalking or any form of persistent conduct which causes another person alarm or distress, and this can include coercive control within an intimate relationship.  On 11th September 2014, the CPS and ACPO launched a new protocol to "ensure consistency of approach when tackling all forms of stalking".

The Home Office consultation was instigated following the HMIC Review into the police response to domestic abuse, which showed that police fail to see domestic abuse as a serious crime and lack the awareness and understanding to deal with domestic abuse and coercive control.

Critics of the proposed new offence have several concerns:

The consultation closes on 15 October 2014. 


Civil remedies

With the number of legal aid solicitors and barristers who can take on domestic violence injunction work declining, the decision to scrap court issuing fees for non-molestation orders, occupation orders and forced marriage protections orders was seen as a very positive move.
This area of work has been relatively unaffected by the recent changes to the family justice system.

In JM v CZ [2014] EWHC 1125 (Fam), Mostyn J considered the then usual practice of the Central Family Court (and other courts) of making ex parte non-molestation orders for 12 months with a provision for the respondent to request a return date hearing or apply on 48 hours' notice to vary or discharge the order. He found that that this does not comply with the statutory requirements of s45(3) for a full hearing "as soon as just and convenient".  He also reminded us that applicants should give at least short, informal notice (e.g. telephone call, text or email) or justify to the court why it is not possible for such notice to be given.  The court should make clear why it is satisfied that the application was made ex parte.


EU Regulation on Mutual Recognition of Protection Measures in Civil Matters

The UK has opted into the Regulation on Mutual Recognition of Protection Measures in Civil Matters which will come into force on 11 January 2015 and applies to orders on and after that date.  The purpose of the Regulation is to ensure that protection measures issued by a member state are easily recognised and acted upon in the rest of the European Union (EU).

Civil protection measures include orders which provide protection from physical, psychological, sexual harm, gender-based violence, domestic violence, harassment and stalking.  It will, for example, include non-molestation orders forbidding a person from contacting the protected person including by telephone, electronic or ordinary mail, fax or any other means.

The Regulation requires the court or the issuing authority, upon request of the protected person, to issue a standard form certificate.  The respondent must be informed about the certificate and the implications of the certificate – i.e. that the protective order can be recognised and enforced across the EU. 

The police in other member states can act on the order for 12 months from the date of the certificate.  The actual procedure of enforcement and consequences of breaching the order shall be governed by the law of the member state.


Conclusion

That brings me to the end of my round-up on recent and forthcoming changes to the law and policy on domestic violence.  None of the measures will reach their full potential without ongoing, specialist training for police officers, the CPS and judges (which is currently lacking).  Many would argue that if the government is truly committed to tackling VAWG then it would fund services that have been shown to work (including services targeting perpetrators), rather than introducing more measures in a fragmented, piecemeal manner to tackle small demands around VAWG.  The changes have, however, brought attention and awareness to the issue of VAWG and will, hopefully, remain as one of the Government's top priorities. 

Mandip Ghai would like to thank Ruth Tweedale and Frances Trevena for their help with this article.

11/9/14