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Compensation for Domestic Abuse after Singh v Bhakar

Singh v Bhakar has opened up potential new forms of redress for victims of domestic violence. Rodney Noon, solicitor, highlights the possibilities and the practical considerations of pursuing any compensation.

 image of Rodney Noon, Solicitor

Rodney Noon, Principal, Rodney Noon Solicitors

The Protection from Harassment Act 1997 is a statute which has been unfairly neglected by family lawyers as a component in our tool kits. The decision of Timothy Scott QC in Singh v Bhakar [2007] 1 FLR 880 brings this statute’s wilderness period to a close. Family lawyers must now come to grips with its provisions, especially the possibility of damages for domestic abuse. To ignore these remedies available to some of our most needy clients is potentially negligent.

The Protection from Harassment Act 1997 (“the 1997 Act”) is a mixed criminal and civil statute. Section 1 contains a general prohibition against anyone pursuing a course of conduct which they know or ought to know amounts to harassment of another. There are criminal sanctions in sections 2 and 4. Section 3 provides that:

"(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment"

Injunctions are a further available remedy and the breach of such an injunction is an arrestable offence triable either way, punishable (if tried on indictment) by up to five years imprisonment.

With the implementation of s42A Family Law Act 1996 (“the Family Law Act”) in July 2007 there are now only three outstanding differences between actions under the Family Law Act and under the 1997 Act:

  1. The 1997 Act does not require the parties to be associated
  2. Claims under the 1997 Act are regulated by the Civil Procedure Rules
  3. A claim under the 1997 Act may include a claim for damages.

It is the last of these matters which this article will consider.

Behaviour which would give rise to a non-molestation order under the Family Law Act will in almost every case equally amount to harassment under the 1997 Act. Section 7(2) of the 1997 Act provides that harassment includes “alarming the person or causing them distress” and further provides at s7(4) that conduct may include speech. Beyond this there is no statutory definition of harassment. The issue has been considered by the Court of Appeal on two occasions. In Thomas v News Group Newspapers Limited [2001] EWCA Civ 1233, [2002] EMLR 78 Lord Phillips MR held that the 1997 Act,

"...does not attempt to define the type of conduct which is capable of constituting harassment. “Harassment” is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.”

Subsequently May LJ had cause to revisit this issue in Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 251, [2005] QB 848  where, having referred to the passage above, he went on to say that,

“The conduct also has to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment.”

The judge also points out that in deciding whether a particular course of behaviour amounts to harassment the court should bear in mind the potentially criminal sanctions for such behaviour and this should colour the approach of the court. Clearly, a series of very minor annoyances may not meet the criteria.

The final hurdle to be cleared by a claimant is to show that there either has been “a course of conduct” or such a course is threatened. Section 7(3)(a) of the 1997 Act states that there must be conduct “on at least two occasions” in relation to the claimant/complainant. On this issue a cautionary note is raised by the Court of Appeal decision in R v Hills [2001] 1 FLR 580. Here two assaults were committed six months apart and  the parties had resumed cohabitation and sexual intercourse in the interval. The court found the the two incidents did not possess “the necessary cogent linkage” (per Otton LJ) to constitute “a course of conduct”.

Against this background it is not difficult to see how many cases of domestic abuse which are routinely dealt with under the Family Law Act might additionally (since the two statutes are not mutually exclusive) give rise to a claim for damages. That it should have taken a decade for the courts to consider quantum of damages in harassment cases is surprising. There are undoubtedly many instances where a damages claim would be a hollow victory because the defendant is a man of straw, but practitioners may also have felt that such claims would lead to such negligible sums that the effort would not be justified by the return. Singh -v- Bhakar clearly shows that the second of these concerns is misplaced.

The Claimant was a young Sikh woman who married a Hindu and moved into the home of her new mother-in-law who took an instant dislike to the new bride and caused her “four months of hell”. The judge found that the claimant had been coerced into having her hair cut against her religious beliefs; forced to wear a locket with Hindu symbols; restricted in her use of the telephone, access to the television and movements outside the home and forced to carry out work which was excessive, pointless and demeaning. All of this led to the Claimant suffering depression. Three years after the marriage she was still unable to return to work and her GP was trying to find a therapist or counsellor for her. The psychiatrist described her as suffering a moderate depressive episode but not suffering post traumatic stress disorder. She sought damages from her erstwhile mother-in-law for harassment.

In the absence of any authorities on the correct approach to quantum in such cases, the Recorder went back to first principles and used as the starting point  the Judicial Studies Board Guidelines for moderately severe psychiatric injury and cases from Kemp and Kemp: The Quantum of Damages (Sweet & Maxwell). The judge felt, however, that there were three important differences between this case and an ordinary personal injury claim:

  1. In accident claims, the compensation is almost entirely for the consequences of the accident rather than the trauma of the accident itself which lasted a very short time. Here however, compensation was not only for the depression but also for the “four months of hell which I find Gina lived through while the conduct was continuing”
  2. The judge felt that it must be much worse to know that you are the target deliberate and malevolent behaviour than to be injured as a result of carelessness.
  3. Although the judge declined an invitation to award aggravated damages because of the way the defence case had been conducted, with the Claimant compelled to relive events in the witness box and attacks on her motives for making the claim, he none the less felt that this could be reflected in the overall award of general damages.

Taking all of this into account the award of damages was £35,000.00, with the judge indicating that even without the considerations at 3 above an award of £27,500.00 would have been made.

By way of comparison, it is unlikely that the Claimant would have received more than £8200.00 (Band 12) under a claim through the the Criminal Injury Compensation Authority even assuming that the she had been able to satisfy all their requirements

There is nothing significant in the fact that the claim was not made against the Claimant’s partner and it will quickly be seen that, certainly in the case of cohabitees who have been subjected to abuse, practitioners must always consider whether a damages claim might legitimately be made. This is especially the case where the client has been living in a home owned by their abuser and where there is equity which can be accessed through a charging order and order for sale to enforce any award which may be made. Without the ability to make a claim for ancillary relief, the client may find that this is her only available avenue to secure the means to establish herself independently, particularly if she now has child care responsibilities.

It is also significant that claims against former partners under the 1997 Act are “family proceedings” for the purposes of the LSC’s funding code and hence public funding will be available (subject to eligibility) rather than having to convince ATE insurers to fund what, for them at least, is likely to be viewed as something of a voyage into unknown territory.

The decision also has implications in the field of the care of the elderly. The abuse of the elderly and vulnerable is a growing and shameful phenomenon. A recent study by the Community and District Nursing Association (Responding to Elder Abuse; September 2003. CDNA) showed that an estimated 4% of the elderly community were suffering some kind of abuse and one in eight community nurses encountered this on at least a monthly basis. Where people are mistreated in residential establishments Singh v Bhakar  may provide significant assistance. The owners of such establishments, whether public or private, are vicariously liable for the mistreatment of residents by the staff and in addition carry substantial insurance against such liabilities. It is not unreasonable to predict that pressure would soon be brought to bear on those who employ inexperienced, unsuitable and overworked staff if a few substantial awards were made in favour of those who are paying for the privilege of being abused.

What then of spouses or civil partners who are the victims of harassment? There is certainly nothing within the 1997 Act to prevent such claims being brought. What remains to be worked out is how any damages would be treated by the court when considering ancillary relief generally.

In A v A (Financial Provision: Conduct) [1995] 1 FLR 345 Thorpe J (as he then was) considered the case of a husband who, suffering from a depressive illness had assaulted his wife with a knife and attempted suicide. Although the learned judge found that the husband’s behaviour was conduct which the court should take into account under s25 Matrimonial Causes Act 1973 (“MCA 1973"), he was also prepared to take into account the wife’s potential Criminal Injuries Compensation award as a potential source from which she might pay a lump sum to her husband in relation to his share in the former matrimonial home. Such assets are by no means exempt from consideration by the court although it may not be too difficult to argue that they should at least be treated as non-matrimonial assets, insofar as that may assist.

A superficial response might be that a spouse would have no need to avail themselves of the 1997 Act as compensation can be dealt with as conduct under s25 MCA 1973 and reflected in the overall financial settlement. Sadly, this approach will often fail.

The question of what kind of violent or abusive conduct should be taken into account under s25 was extensively and carefully reviewed by Burton J in S v S (Non-Matrimonial Property: Conduct) [2006] EWHC 2793 (Fam), [2007] 1 FLR 1496 . Here the marriage had broken down after the husband assaulted the wife. He was convicted (following a plea of guilty) of assault occasioning actual bodily harm and received a twelve month Community Rehabilitation Order. Since one of the witnesses at the final hearing of the wife’s application for ancillary relief was a circuit judge well known in the Family Division, Mr Justice Burton was drafted in from the Queens Bench Division to hear the case.

The assault which led to the husband’s arrest was the culmination of a row in which the wife had smashed a tobacco pot formerly belonging to his father and pulled over a grandfather clock which fell to the ground. The wife retreated to the bathroom pursued by the husband who was, he accepted, “absolutely furious”. Only as she shut the door behind her did she realise that it had no lock and so she tried to hold it shut. The husband forced the door open and in the course of doing so the wife struck her head on a shower pole sustaining a cut which bled profusely. The husband struck the wife on the back of her head as she lay on the floor and tried to pull her engagement ring off.

At paragraph 38 of a very careful judgement Burton J reviews all the existing authorities on violent conduct which will have an impact on financial provision. What is clear is that these are all cases of attempted murder of a spouse or conduct very close indeed to that. The judge cites with approval the comments of Sir George Baker P. in W v W [1976] Fam 107 at 110D where he suggests that the conduct must have “the gasp factor”.

Applying this to the case before him the judge says at paragraph 57 that had he been satisfied (as the wife alleged) that the husband had deliberately picked his wife up and smashed her head against the shower pole, such a  finding may have had an effect on his conclusions. However,  against the background of a tempestuous relationship, he was left with “a gulp factor” out of what the parties had done to each other but not “the gasp factor” which would have led to an enhancement of the wife’s financial entitlement.

It is submitted that the following conclusions can be drawn from Singh v Bhakar and S v S:

  1. In all non-marital/civil partnership cases of domestic abuse practitioners should always consider whether a claim for damages under the 1997 Act (and/or for assault) should be commenced.
  2. Local authorities and solicitors representing children in care cases should be equally alive to these issues on their client’s behalf.
  3. It is currently doubtful whether such an approach will assist spouses. Most behaviour (thankfully) falls well short of Burton J’s “gasp factor” and even where this hurdle is cleared it is open to doubt how much difference such a claim will make since any award would not be disregarded when considering the applicant’s needs under s25 MCA 1973 and her resources available to meet those needs.

In most cases those representing cohabitees are left complaining of their unfair treatment in comparison to their married counterparts. This may be one area where the courts accidentally treat the unmarried better than spouses.