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Drafting non-molestation orders: going beyond the blanket ban

Byron James, of Guildford Chambers, considers the need to ensure accurate, specific drafting of non-molestation orders

image of Byron James, barrister, Guildford Chambers

Byron James, Barrister, Guildford Chambers 

Whenever one reads domestic violence articles, they are often negative, complaining of the current system and the unsatisfactory flaws that place lives in jeopardy. Unfortunately for the legal optimists out there, this article continues the trend. 

It is one of the most valid criticisms of the legal system’s approach to cases of domestic violence that each case is treated in a formulaic fashion, often with the specific needs of the case at hand being overlooked. It is curious that in an area such as family law, where the tool of wide judicial discretion is necessarily applied with creativity in respect of ancillary relief and children cases, one of the most common applications is treated with such rigidity, in such a generalised fashion. The cause of this approach can largely be put down to the fact that there are so many applications throughout the country and frequently busy judicial lists: it is not so much the immovable object and the unstoppable force, it is clear in this regard which wins the day. One imagines that it is also thought by the judiciary, and perhaps by practitioners too, that such domestic violence cases can still be dealt with effectively even if expeditiously. It is the opinion of the writer that this is true in a number of cases but, crucially, not all.

Following the often written about changes to the Family Law Act 1996, through the Domestic Violence, Crime and Victims Act 2004,  the Court and practitioner have the ability to adopt a whole range of wording in terms of the injunctive relief sought, to really go to the heart of the problems encountered by the victim.  But is specific drafting a regularly adopted practice? There is Court of Appeal guidance in R v Shane Tony P [2004] EWCA Crim 287 and Boness v R [2005] EWCA Crim 2395, both of which were concerned with ASBOs but are still applicable to the drafting of non-molestation orders, that states precise terms should be adopted rather than generic wording. This is specifically dealt with in the Family Court Practice 2008 (pgs 3037-3038) which calls the specimen clauses of the Family Procedure Rules 1991, Appendix 1 ‘inadequate’.  These rather wordy specimens are thought unsuitable in the context of the involvement criminal courts on breach. The Family Court Practice records that a shorter pro-forma is adopted, including terms that every practitioner will be familiar with, dealing with using or threatening violence, communicating in inappropriate ways and exclusion clauses.

Whilst the suggested pro-forma approach is precise it nevertheless imposes a generic approach to drafting. If one were to sample the non-molestation orders made on any given day throughout the country, one imagines that the majority of them would be drafted in exactly the same way. Indeed, in some courts, an actual pro-forma sheet is given to practitioners who are asked to ‘tick the boxes of the remedies sought’. It is surely clear that in some cases the inclusion of specific clauses would be of greater assistance to the victim, after all, made to measure is always superior to off the peg. The reasons for the absence of specific drafting are numerous, and as have been stated, include a lack of time and culture of thinking that speed and effectiveness are not mutually exclusive. There is also a lack of judicial enthusiasm to follow the ASBO route of creating specific criminal offences of otherwise non-criminal behaviour. There appears to be a real suspicion of this approach, perhaps routed in the potential for ridicule later on when an offender is detained for doing something perfectly ordinary, such as going to a particular restaurant.

There then follows the extremely difficult question of what sort of protection should be afforded to the victim. What is it that the non-molestation orders are there to achieve: is it immediate protection only or the implementation of a framework in which the parties can operate on a day to day basis for a year, perhaps more?  A blanket ban on all forms of communication and interaction between victim and perpetrator is not always realistic beyond the immediate. This is especially so when there are children involved or if the parties’ employments are linked, say through the running of the family business. Despite there being something of an emphasis on the injunctive relief being suitable for emergency protection only, there are certainly cases where more specific regulation of behaviour can be used to ensure an appropriate level of interaction between victim and perpetrator. In cases where the blanket ban is implausible beyond the immediate, surely a way should be found for protection to continue. It remains, however, that in the majority of cases where this approach would be appropriate, it is still not adopted. This is mainly consequent on the aforementioned judicial reluctance to criminalise behaviour that is not in itself deserving of criminal sanction. It is one thing, say, in private law child cases to regulate behaviour but sanctions are only implemented, in the form of a penal notice, following a serious or continued breach, and even then do not lead to automatic criminal sanction upon the breach.

It also leads one to question in such cases whether practitioners are always qualified to know what level of protection is suitable for any given victim, upon what expertise do lawyers know what level or types of interaction are appropriate or safe.  In the main, it will be a combination of being client led, being what the victim is content with, and the lawyer’s experience of ‘similar’ cases; however, this is hardly satisfactory in every case. If a practitioner is to create a ‘framework’ in the manner described above, is he really in a position to know what level of interaction is safe for the client, can the client even be said to know, when they may be in denial about the full extent of what has happened in the past or are simply unrealistic about what the future holds for their relationship with the perpetrator. 

When one has children cases, and difficult questions of interactions between parties are involved, expert advice is sought from, inter alia, CAFCASS. Whilst in such cases judges rightly encourage parties to find their own solutions, it would hardly be an appropriate route in every case. There is a difference in domestic violence, in that one is dealing solely with adults (if children are involved in the abuse then recourse can be had to the Children Act 1989) but nevertheless these regularly are vulnerable adults, who may have been abused for long periods of time. There is great potential for complexity, as well as a great potential for serious harm, in the event that things go wrong. Ultimately, when things go wrong, it is the fault of the perpetrator, but it is unquestionably the practitioner’s role to place the victim in the safest position possible. There are numerous bodies that one can envisage playing a role in assisting the court in advising on the types of behaviour that would be appropriate to allow/prohibit in a given case, from charities such as Woman’s Aid, specialist units of the police and even individual experts in domestic violence. The barrier to such input is, as often, resource based, a barrier that would need to be overcome either by imagination given to the type of involvement that the expert/expert agency would have or by simply recognising that such is necessary. 

The difficulty with the present system is that it is not well designed to accommodate anything much beyond an emergency, ‘blanket’ remedy that is suitable either for a short period of time or for those victims who want nothing to do with the perpetrator. The system works well for such applicants: there is a relatively low threshold criteria, evidence is rarely required and it is obvious what instances of behaviour can be specifically prohibited by the order. It is also in these cases where expeditious handling will rarely prove problematic. This article intends to highlight the large amount of ‘other’ cases, where what is sought is beyond the short term and in situations where a level of interaction is unavoidable, with regulation of that interaction also necessary. Whether or not lawyers per se are capable of determining the exact nature of this interaction remains to be seen, but one can envisage cases where expert opinion could and should be sought. It is also questionable whether the Family Law Act 1996 is a good tool for this more complex, longer term regulation but what other remedy do victims in such circumstances have? It is clear that these ‘other’ cases are not well catered for by the present system. It is right that the judiciary should not want to be flippant in the types of behaviour that they ultimately criminalise, but, as always, it is a balancing exercise, and the victim’s protection must be a priority. It is a dangerous game to play in such situations, given the high stakes of getting it wrong.

Guildford Chambers