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Domestic Violence and Family Law: A New Era

Bansi Soni, of Garden Court Chambers, reviews the latest developments in domestic violence proceedings under the impact of the Domestic Violence, Crime and Victims Act 2004.

Domestic Violence and Family Law: A New Era

Bansi Soni, Garden Court Chambers

A recent Home Office study on domestic violence reported shocking statistics. For women aged between 19 and 44, domestic violence is the leading cause of morbidity, that is greater than cancer, war and motor vehicle accidents. 89% of the victims who suffer sustained domestic violence are female (The Home Office, 'Domestic violence: A national report', March 2005).

Further sections of the Domestic Violence, Crime and Victims Act 2004 (DVCVA) came into force on 1st July 2007. In an effort to improve protective measures for the victims of domestic violence – which also include the lesbian, gay, bisexual and transgender community and male victims - the DVCVA makes significant changes to Part IV of the Family Law Act 1996 (FLA). In particular, the definition of 'associated persons' and 'co-habitants' is extended, the breach of a non-molestation order is criminalised with such orders no longer being capable of having a power of arrest attached, and the procedure for the acceptance of undertakings by a court is changed.

'Associated persons' and 'Cohabitants' - definitions widened
For the court to have jurisdiction to make an order under the FLA against an individual, that individual must come within the definition of an 'associated person'. The DVCVA makes two crucial changes to the FLA in this respect.

Firstly, section 3 of the DVCVA amends the definition of cohabitants to include same-sex cohabitants. It will enable same-sex cohabitants to apply for occupation orders under section 36 and section 38 of the FLA, bringing their rights into line with the rights of heterosexual cohabitants, allowing them to apply for non-molestation orders by virtue of being a 'cohabitant' rather than being part of the same household as the respondent.

Secondly, an entirely new category of 'associated persons' is added by section 4 of the DVCVA, so that s.62(3) of the FLA now includes individuals who

"… have or have had an intimate personal relationship with each other which is or was of significant duration".

It does not appear that an "intimate" relationship is necessarily limited to a sexual one and enables both heterosexual and same-sex couples who do not live together and do not have children together but have been involved in a relationship for some time to apply for a non-molestation order. Without a body of case law, it is difficult to establish exactly how long a relationship needs to have lasted in order to have been of a "significant duration", however the wording does seem to suggest that a one night stand is not long enough! It will be for the court on a case by case basis to decide whether a relationship meets these criteria.

The DVCVA introduces new statutory provisions for undertakings. The breach of an undertaking is not criminalised and remains only a contempt of court. However, the previous ambiguity under the FLA has been clarified and the court may now issue a warrant of arrest in the event of an alleged breach. In practice courts have been extremely reluctant to accept undertakings where there has been actual or threatened violence and this position is further emphasized with the amendments of the DVCVA. Para 37 of Schedule 10 to the DVCVA limits the use of undertakings further. The court is now restricted by statute from accepting an undertaking where it appears to the court that the respondent has either used or threatened violence against the applicant or a relevant child. Instead, for the protection of the applicant or relevant child it is necessary to make a non-molestation order so that a breach may be punishable by criminal proceedings. In situations where the respondent denies any violence or threatened violence and offers to give an undertaking, it is probable that there will need to be a fact-finding hearing.

Criminalising the breach of a non-molestation order
The most fundamental change that the DVCVA brings is the criminalisation of the breach of a non-molestation order. Breaches remain a contempt of court but the ability of the court to attach a power of arrest is removed. Section 1 DVCVA inserts a new section 42A into the FLA 1996 which provides:

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

(2) In the case of a non-molestation order made by virtue of section 45(1) (ex-parte order), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.

(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court."

Criminalisation - a positive move?
The criminalisation of a breach of a non-molestation order sends out a very clear message to perpetrators: that the harassment of, or violence against a partner or ex-partner is not acceptable. It signals that such conduct is not excusable simply because it is within a familial setting. The confinement of punishment of breaches of non-molestation orders to the civil courts limited their effectiveness. Prior to the DVCVA, if found guilty of a breach, the respondent would be liable for a fine or in exceptional circumstances a custodial sentence. In contrast the criminal court may impose a range of community sentences such as curfew orders, mental health orders, drug treatment orders etc, many of which attempt to treat the underlying cause of the offending breach instead of simply punishing it. The criminalisation of the breach has serious ramifications for the respondent, who if found guilty will now have a criminal record with all the associated repercussions. The breach is an either-way offence so the respondent may elect trial by jury. If found guilty summarily, the respondent may face a fine or up to 6 months imprisonment and up to 5 years imprisonment on indictment.

The disadvantages, however, of having the matter dealt with as a criminal offence cannot be overlooked. One of the main problems is that the applicant's sense of autonomy and choice are removed. The applicant becomes a passive bystander in the whole process with little sense of control. As a practitioner, under the old regime I found it immensely satisfying to obtain non-molestation orders for an applicant. The applicant (normally female) would attend court on an ex-parte basis and seek injunctive relief against a partner who would often have perpetrated serious violence against her. Once an order had been made and the applicant had in her possession the power of arrest, she had a palpable, almost physical, sense of relief. The power of arrest meant that the applicant had received an almost immediate remedy, and she left court confident in the knowledge that if the respondent attempted to breach the injunction she could call the police and he would be arrested.

With the introduction of the DVCVA, it is the police and eventually the CPS who decide whether to pursue the matter. Even if the respondent is initially arrested because of an alleged breach, it may be that the CPS decides not to progress the matter due to a lack of evidence or shortage of resources. It can be argued that there is nothing stopping the victim from applying to the civil courts for committal for breach of an order. At present, the Legal Services Commission has given no commitment to provide legal aid for proceedings which are able to be pursued through the criminal courts and it is unlikely that they will in the future.

Often an applicant does not want the matter to be criminalised and prior to the DVCVA she was able to obtain an adequate remedy in the family courts. This appears no longer to be an option. She is forced to pursue the matter in a criminal court where the central focus is punishment of the respondent rather than protection of the applicant. Also of significance is that the matter will be heard in an open court within the criminal system (unless a special measures application is made) and this may deter women, especially from an ethnic minority community, from reporting the matter in the first place. The family court is a closed court, with a sense of privacy and anonymity, and this is absolutely vital for an applicant from an ethnic minority community who may be concerned about issues of 'shame' and bringing 'dishonour' to her family.

A non-molestation order or an occupation order - the statutory overlap
The following is a common scenario. An applicant has split up from her violent partner and has moved away from the family home, taking the children with her. The respondent, having trouble letting go of their relationship, finds out her new address and starts to stalk the applicant at her new home. The wording of a typical order required in this situation would be;

" The Respondent is forbidden to enter or attempt to enter or come within 100 meters of [54 Roseberry Gardens]."

An order such as this can be obtained under s.42 of the FLA 1996 using a non-molestation order or under s.33(3)(g) of the FLA 1996 through an occupation order excluding the respondent from a defined area in which the dwelling house is contained. Prior to the DVCVA coming into force, it was very much an academic argument as to which section of the FLA was used. However, now the section employed will make a fundamental difference. Breach of s.42 is a criminal offence which (in the absence of legal aid) will have to be pursued in the criminal courts; by contrast, breach of s.33(3)(g) is not and will be dealt with in the civil courts with civil penalties. It will now be extremely important prior to issuing to make sure that the applicant understands the two very different consequences of essentially the same breach; one is a criminal offence and the other is not. If the matter for the applicant is restricted to a 'zone of safety' issue then it may be argued that with the enactment of the DVCVA the applicant actually has more choice because she can choose to have the matter dealt with by the criminal courts or opt to issue under s.33(3)(g) so that the matter remains within the confines of a civil court.

Ex-parte orders
There is a clear distinction between section 42A (1) and (2) of the FLA 1996. Any order now made must state clearly whether it was made on an ex-parte basis or on notice. If a respondent is deliberately evading service, then an application can be made under s45(2)(c) of the FLA 1986 to proceed with the matter on a without notice basis.

It is important to note that Section 42A(2) of the FLA 1996 provides:

"…(2) In the case of a non-molestation order made by virtue of section 45(1) (on an ex-parte basis), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order."

Significantly the respondent only has to be aware of the "existence" of a non-molestation order and not necessarily the terms of such an order. The respondent will normally be aware of any order and its terms by means of personal service. It is possible, however, that he is made aware of the existence of an order (without being aware of the exact terms) from a casual acquaintance or conversation. It is conceivable within such a scenario that despite not having been served, the respondent is guilty of breaching an order simply because he was aware of its existence. It seems manifestly unjust that a respondent may be guilty of breaching a non-molestation order, and thereby committing a criminal offence, when he does not know exactly what he was forbidden from doing in the first place. It appears that there is a strong argument for the proposition that the respondent's rights under Articles 5, 6 and 8 of the Human Rights Act 1998 (HRA) may have been breached in such circumstances, and it will be interesting to observe how case law develops on a case by case basis on this point.

Procedure on arrest
Warrant procedure will now apply to any breach of a non-molestation order. When the respondent is arrested and brought to court, the procedure is exactly the same as if he had been arrested under a power of arrest, except that:

  1. The lawfulness of the arrest does not have to be proved; and
  2. If the proceedings are adjourned, then the matter has to be dealt with within 14 days of the arrest, unless the court directs otherwise under rule 4(d) of the Family Proceedings (Amendment) Rules 2007, 2007/1622.

Avoiding double jeopardy
The new ss. 42A (3) and (4) of the FLA 1996 provide that:

"(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court."

The above sections deal with the overlap of criminal and contempt proceedings and provide that when an individual has been punished for contempt in the family proceedings, he may not be convicted of an offence in the criminal courts and vice versa. There is no bar however to parallel proceedings. So that it is entirely possible that the respondent is being tried for a breach of a non-molestation order in the criminal courts but that a warrant of arrest followed by summary committal may overtake the existing criminal proceedings, which generally tend to be slower. Where the respondent is not found guilty at the first hearing (whether in the civil court for contempt or the criminal court), there is nothing to stop the applicant from 'taking a second bite of the cherry' and pursuing the matter in the court (civil or criminal) where the case has not yet been tried.

Transitional provisions
The provisions of the DVCVA 2004 do not apply where a power of arrest under s.47 FLA 1996 has been attached to a non-molestation order before 1st July 2007 unless the power of arrest no longer has effect. If there is a live power of arrest the old law and the old rules will continue to apply. On the other hand, if there is no power of arrest at all attached to the s.42 order or the power of arrest has expired, then breach of that order after 1st July 2007 will be a criminal offence. It is important to note that non-molestation orders made before 1st July 2007 may still be extended under s.49(1) and that any power of arrest may be extended under s.49(4) provided that the order is made before the power of arrest expires.

The DVCVA marks a new era in the arena of domestic violence litigation, and it remains to be seen whether it will have the impact it is intended to have - as practitioners, we can simply cross our fingers and hope!

The author would like to thank His Honour Judge John Platt for his hugely informative talk on "Domestic Violence : Important Changes in Legislation" at the FLBA on 27 June 2007. The talk has served as an inspiration for this article.