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The Domestic Violence Crime and Victims Act 2004: A practical perspective

Claire Bessant looks at the how the Domestic Violence Crime and Victims Act can be used in real life situations

The Domestic Violence Crime and Victims Act 2004

A practical perspective

picture of claire bessant

Claire Bessant, Solicitor and Principal Lecturer in Law, Northumbria University School of Law

The Domestic Violence Crime and Victims Act 2004 (the "DVCVA") received Royal Assent in November 2004. The DVCVA makes several changes to the Family Law Act 1996 (the "FLA"). This article looks at the protection currently offered to victims of domestic violence by the FLA and contrasts this with the position following implementation of the DVCVA. The Civil Partnership Act 2004 will also amend the FLA and relevant provisions within the CPA are also briefly considered.

Let us first consider the following scenario. Annabel and Belinda have cohabited for 10 years in Annabel's four bedroom detached house. Annabel has subjected Belinda to verbal and physical abuse on several occasions and is prone to violent fits of temper. Last night, Annabel assaulted Belinda, and caused her severe bruising. Annabel and Belinda both agreed when Belinda moved in that Belinda would play the role of home-maker. Belinda has no savings and no income. Belinda stayed last night on a friend's floor but cannot stay there long term. She has no alternative accommodation.

The current law
Since Annabel and Belinda live in the same household (otherwise than as employee, tenants, lodger or boarder) they are associated persons (s62(3)(c) FLA). Belinda is entitled to apply for a non-molestation order. In deciding whether to make that order the court will consider how best to secure Belinda's health, safety and well-being (s42(5)).

The court may grant the order on a without notice basis provided it is satisfied that it is just and convenient to do so (s45(1)). It will specifically consider whether Belinda is likely to suffer further significant harm at Annabel's hands, or be deterred from pursuing her application, if the order is not made without notice. Belinda can also apply for a power of arrest to be attached to the non-molestation order. The court must attach the power of arrest to the non-molestation order, if satisfied that Annabel has used or threatened violence against Belinda (s47(1). The court is not obliged to attach such a power to a non-molestation order made without notice, but may do so if it believes that the respondent has used or threatened violence, and that Belinda faces further significant harm if the power of arrest is not attached (s47(2). If no power of arrest is attached, Belinda may apply for a warrant for Annabel's arrest (s47(8)) and seek Annabel's committal to prison.

Several problems are posed by the current law:

(a) Belinda is unable to obtain an occupation order confirming that she may remain living in Annabel's property.
(b) Belinda is unable to prevent Annabel from returning home or to obtain an order requiring her to leave. If Annabel does return home, Belinda fears further verbal and physical abuse. Such behaviour would probably breach any non-molestation order. However, if Belinda's priority is to avoid further abuse and injury, then a non-molestation order alone may not achieve that aim.
(c) If a power of arrest is not attached to the without notice non-molestation order, and this is of course at the court's discretion, Belinda must seek a warrant for Annabel's arrest and pursue an action for committal. This will take time and requires Belinda to return to court to plead her case a second time.
(d) The police are able to arrest Annabel without warrant if a power of arrest has been attached, but if a copy of the relevant order is not available to them may be reluctant to do so. Even if it appears that Annabel has assaulted Belinda the police's arrest powers are limited. Common assault is not an arrestable offence. The police's powers under PACE (to arrest for intent to carry out an arrestable offence (s24(7) PACE), and the general arrest provisions (s25 PACE)) would be of no use if Annabel left the home following an incident.

A reconsideration of the scenario post implementation of the DVCVA

Non-molestation orders
Belinda can still apply for a non-molestation order on a without notice basis. However, she can no longer apply for a power of arrest to be attached to the non-molestation order, whether that order is made on a without notice basis or not. Instead, new Section 42A FLA introduces a new means by which to enforce non-molestation orders.

Section 42A(1) states that:

'a person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence'.

If the non-molestation order has been made without notice, then Annabel can only be guilty of an offence under Section 42A if she is aware of the existence of the order (s42A(2)). She does not need to have read its exact terms.

The problems with powers of arrest that are caused by the current law will no longer apply. The Section 42A offence is an arrestable offence. If the police are satisfied that a non-molestation order has been made, and breached, they may arrest Annabel (Belinda's solicitor should still ensure that a copy of the order is provided to the police to ensure that all has been done to make the police aware of the order). Section 10(1) DVCVA additionally makes common assault an arrestable offence. This allows the police to arrest Annabel if she intentionally or recklessly causes Belinda to apprehend immediate and unlawful violence. It is therefore suggested that if Annabel is accused of verbally or physically abusing Belinda the police do now have adequate powers to arrest and remove Annabel on either basis.

Arrest is, of course, not the end of the matter. Enforcement of the order, deterring Annabel from future violence is arguably much more important. Two options for enforcement of the non-molestation order now exist; a criminal prosecution against Annabel instituted under Section 42A FLA and an application before the civil courts for her committal to prison. Only one option may be pursued, however, and should Annabel be convicted under Section 42A, Belinda would not be entitled to bring proceedings for contempt (s42A(3)).

If the police are called upon to arrest Annabel for breach of the non-molestation order, will they return Annabel to the civil courts or take her to the criminal courts with which they are more familiar? As yet no-one knows the answer to this. One benefit to Belinda of the criminal route is that the matter is effectively taken out of her hands. The police are pursuing the prosecution, and (in theory) Annabel cannot blame Belinda for the actions that the police take. The sentencing options available, should Annabel be convicted of breaching the non-molestation order, are also more extensive than those that are available within the civil jurisdiction. They include fines, community sentences such as rehabilitation orders which might require Annabel to attend an anger management programme, or of course prison. The criminal court will, of course, also be able to make civil restraining orders whether it convicts or acquits Belinda of the Section 42A offence, or any other offence (Sections 5 and 5A PHA as amended by the DVCVA).

These are the advantages of the new law, but the disadvantages must also be considered. Whether Belinda does, in reality, have the option of pursuing proceedings for contempt once the non-molestation order has been granted is debatable. Much will depend on guidance offered by the Crown Prosecution Service to the police about the appropriate route for enforcement. Since the court will not be able to attach a power of arrest to the non-molestation order, Belinda's only alternative to involving the police (and risking criminal proceedings under Section 42A) will be to apply for a warrant for Annabel's arrest. If she makes this choice some delay is, as now, inevitable.

If criminal proceedings do ensue then Belinda will not, of course, be a party to the criminal proceedings. Once the non-molestation order is obtained and police are involved Belinda will merely be a witness for the prosecution. The Crown Prosecution Service will be the driving force behind the prosecution. The extent to which Belinda's views upon pursuing a prosecution and the likely sentence will be taken into account have yet to be seen. Belinda will not be granted public funding for representation before the criminal courts. The solicitor who advised Belinda in relation to the non-molestation order unless he is also an expert on the criminal law, may not be able to advise her upon the criminal process and likely outcome of these proceedings. Clearly, however, Belinda's family solicitor will need to ensure that Belinda is fully aware of the consequences of applying for a non-molestation order and should be offering advice or referring Belinda for advice at the outset, explaining the consequences of breach, the possibility of criminal proceedings and the role that Belinda is likely to play in them.

Non-molestation orders and their enforcement seem likely to provoke much concern over the coming months. The above explanation of the law merely scratches at the surface of what is in reality likely to be a much more complex situation. If the non-molestation order requires amendment post breach this issue cannot be dealt with by the criminal courts, Belinda will need to return to the family court for assistance in this regard. The criminal court may also be dealing with criminal proceedings against Annabel for assault, or more serious offences. Furthermore, the DVCVA does not prevent an action under the Protection from Harassment Act 1997 (the 'PHA') running alongside the FLA. Parallel cases under the FLA jurisdictions and under the PHA (as seen in Lomas v Parle [2003] EWCA Civ 1804) remain possible.

Occupation orders
At first sight occupation orders remain, by comparison to non-molestation orders post DVCVA, relatively straightforward. A power of arrest can still be attached to an occupation order. The only significant change, and indeed improvement to the situation is an amendment to Section 62(1) FLA. Under Section 62(1), as amended by Section 3 DVCVA, cohabitants and former cohabitants will include same sex couples who although not married to each other, are or were living together in an equivalent relationship to that of a husband and wife. This will enable individuals in Belinda's situation to apply for an occupation order under Section 36 FLA.

Still recognizing that cohabitants have not entered into the commitment of marriage (and Section 36 does of course still apply to heterosexual cohabitants) the court will be required, when deciding whether to grant an occupation order to Belinda, to consider the nature of her relationship with Annabel, and in particular the level of commitment each has shown to the other (s36(6)(e) as amended by DVCVA).

It is at this point it is worth noting further amendments that will be brought into force by the Civil Partnership Act 2004 (which adds yet another twist to this already increasingly complex area). The definition of cohabitants in Section 62(1) is further amended by Schedule 9 para 13 CPA. If this provision becomes law then cohabitants will be defined as 'two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners'. The DVCVA and CPA definitions clearly cannot both stand. The CPA is expected to be implemented in December 2005, whilst Sections 1-4 DVCVA are expected to come into force earlier in the autumn. Whether both definitions will in fact see the light of day remains unclear.

Schedule 9 CPA also makes wider ranging amendments to Part 4 of the FLA and related enactments, so that they apply in relation to civil partnerships as they apply in relation to marriages. The victim of domestic violence who has entered into a civil partnership will therefore be afforded 'home rights' (Sch 9 para 1 CPA). Sections 33, 35 and 37 apply to registered civil partners as they apply to spouses. The effect therefore upon implementation of the CPA will be that spouses and civil partners, whether home owners or not, will be entitled to apply for occupation orders under Section 33. Former spouses and former civil partners will be able to rely upon Sections 35 and 37. The balance of harm test (s33(7)), therefore applies to registered civil partners but not to other cohabitants. Orders made under Sections 33, 35 and 37 in favour of civil partners may, of course, be made for a longer duration than orders made in favour of other cohabitants, whether same sex or otherwise under Sections 36 and 38.

The scenario looks likely to become increasingly complex post implementation of the DVCVA and CPA. And we have, of course, yet to consider the situation, as here, where Belinda would seek an occupation order and a non-molestation order? Could Belinda seek Annabel's arrest for breach of the occupation order and enforcement through the civil jurisdiction whilst breach of the non-molestation order is pursued through the criminal courts?

In summary, the DVCVA and Civil Partnership Act 2004 will, undeniably, improve the protection offered to victims of domestic violence. Cohabitants who are entitled applicants or who have entered into a civil partnership will be able to utilize Section 33 whilst all other cohabitants, whether of the same, or the opposite sex will be equally entitled to obtain occupation orders under Section 36. Ensuring that the respondent is arrested for breach of either a non-molestation order or an occupation order should no longer pose the same problems.

There will, however, be new issues for all family lawyers to deal with, as the law beds in. Before the DVCVA is fully implemented guidance is needed about whether a criminal prosecution will be the automatic consequence of breaching a non-molestation order. The appropriate means of enforcement where non-molestation orders and occupation orders have both been breached is another matter requiring early debate. Certainly, the family solicitor providing advice to their family clients on the consequences of obtaining a non-molestation order will have much to consider when the DVCVA (and CPA) are implemented.

Claire is author of Domestic Violence Crime and Victims Act 2004: A Guide to the New Law (2005) published by Law Society Publishing - click here to buy her book now at Hammicks Legal Bookshops