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The Domestic Violence Crime & Victims Act: what are the changes?

District Judge Roger Bird asseses the new Act and its impact on resolving dometic violence enforcement

District Judge Roger Bird, Bristol County Court

The Domestic Violence, Crime and Victims Act 2004 (DVCVA) has now received Royal Assent. It is not known when this change in the law is to come into force, but readers should be aware that the law and procedure will change at some future date and should now familiarise themselves with the changes.

The changes may be summarised as follows:

(a) amendments to definitions of cohabitants and associated persons;

(b) changes to procedure for undertakings;

(c) removal of power of arrest from non-molestation orders; consequent amendments to occupations orders;

(d) creation of new offence for breach of order;

These will be considered in turn.

The DVCVA amends the existing law in two respects by enlarging the class of associated persons. By section 3 the existing definition of Cohabitants in section 62(1)(a) of the Family Law Act 1996 (FLA) is removed and the following is substituted:

"Cohabitants are two persons who, although not married to each other, are living together as husband and wife or (if of the same sex) in an equivalent relationship."

No change is therefore made to the existing definition in respect of couples of different sexes but the category is now intended to include homosexual couples.

The class of associated persons is further extended by section 4 so that section 62(3) FLA 1996 reads as follows:

"For the purposes of this Part, a person is associated with another person if-

(ea) they have or have had an intimate personal relationship with each other which is or was of significant duration."

It seems that the intention of the legislation is to include the boyfriend and girlfriend who had not actually lived together. Only time will tell whether this is workable.

The second class of important changes made by the DVCVA relates to enforcement for breaches of non-molestation orders and changes in the approach of the court to acceptance of undertakings in lieu of an order. The effect of paragraph 38 of Schedule 10 DVCVA is to amend section 47 FLA so that the power to attach a power of arrest to a non-molestation order is removed, while allowing it to remain for occupation orders. The reason given for this is that breach of a non-molestation order has become a criminal arrestable offence and it was thought that it would be unduly confusing for police officers to have to decide whether a person arrested by them should be dealt with under the previous procedure of bringing before the family court within 24 hours or as a criminal defendant to be dealt with in the magistrates court.

By section 46(1) FLA the court has power, within certain restrictions, to accept an undertaking from any party where it has power to make an occupation order or non-molestation order. Because the ability to attach a power of arrest to a non-molestation order has been removed, this position has had to be rethought and the restriction on the right of the court to accept an undertaking redefined. First, section 46(3) is amended to read as follows:

"The court shall not accept an undertaking under subsection (1) instead of making an occupation order in any case where apart from this section a power of arrest would be attached to the order."

This recognises that a power of arrest may still be attached to an occupation order. Secondly, a new subsection (3A) is inserted (by para 37(3) of sched10) which reads as follows:

"(3A) The court shall not accept an undertaking under subsection (1) instead of making a non-molestation order in any case where it appears to the court that-

(a) the respondent has used or threatened violence against the applicant or a relevant child; and

(b) for the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under section 42A."

The proviso in the old law, contained in section 47(2)(b) and applicable to section 46(3), namely that the court may decline to attach a power of arrest (and therefore feel able to accept an undertaking) if satisfied that the applicant would be adequately protected without a power of arrest, has gone. Now the test is whether the court considers that it is necessary to make a non-molestation order, breach of which is an arrestable offence, for the protection of the applicant. It may be that the end result is very much the same as before, but the wording is different.

The changes effected by the DVCVA in respect of the method of enforcing non-molestation orders and punishing breaches thereof are some of the most significant matters contained in the Act. The Government's view was clearly that the existing system had been found wanting, and therefore, as described above, non-molestation orders may no longer bear a power of arrest, and breach of such an order becomes a criminal offence.

The reasoning for this was that making a breach an offence would extend the range of sanctions available to the court. Section 1 DVCVA inserts a new section 42A into the FLA 1996 which provides that:

"(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), 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."

Subsection (1) therefore contains the ingredients of the offence. The act complained of must be forbidden by the non-molestation order, and there must be no reasonable excuse for the breach; put another way, reasonable excuse is a defence to the charge. The position is therefore that breach of any provision of the order, however comparatively insignificant, will constitute an offence.

Subsection (2) refers to orders made under section 45(1) FLA, namely without notice orders. Subsections (3) and (4) deal with the overlapping of criminal proceedings and contempt proceedings. Even though the power of arrest has been removed, there is no reason why a complainant should not seek to punish breach of an order by means of the issue of a warrant of arrest under FLA section 47(10) or by the issue and service of a notice to show good reason why the respondent should not be committed to prison (Form N78 in the County Court, Form FL418 in Magistrates Courts). The Act imposes no restrictions or time limits on either a prosecutor or a complainant wishing to enforce by a contempt application.

Subsections (3) and (4) provide, in effect, that a person who has been punished for contempt in the family proceedings may not be convicted of an offence and vice versa. This still leaves an unfortunate lacuna. There is nothing to prevent a complainant beginning contempt proceedings where the respondent has been arrested, and there is nothing to prevent prosecution of an alleged offender where contempt proceedings are pending. It may be that rules of court will deal with this but it has to be said that, at present, there is room for confusion.

Further, there is nothing to prevent a complainant who is dissatisfied by the acquittal of a respondent, or the dismissal of contempt proceedings against him, making a second attempt to punish him in the other court, perhaps armed with better evidence. The Act only prohibits duplicate proceedings in the event of a favourable outcome for the applicant; it does not contemplate the result of unsuccessful proceedings. The changes which the DVCVA makes to occupation orders are limited in comparison with those made to non-molestation orders.

Section 41 FLA provided that where the parties were cohabitants or former cohabitants, in considering the nature of the parties' relationship the court 'is to have regard to the fact that they have not given each other the commitment involved in marriage.'. Section 2(1) DVCVA repeals section 41 so this is no longer an issue to trouble the court.

Section 36 FLA governs the position where the parties are cohabitants or former cohabitants and one party has a right to occupy but the other does not. Subsection (6) sets out the matters to which the court must have regard, and subsection (6) (e) requires the court to have regard to 'the nature of the parties relationship'.

Section 2(2) DVCVA amends subsection (6)(e) so that it now reads 'the nature of the parties relationship and in particular the level of commitment attached to it'. This does not make a material difference to the existing law and in fact makes explicit what was previously implicit.

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