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Historical background to civil legislation 10.07.07

In the early 1990’s, the need for better protection from domestic violence under the civil law was highlighted through a number of reports and enquiries. Since 1976, injunctions could be obtained under three different statutes:

  • the Domestic Violence and Matrimonial Proceedings Act 1976 
  • the Domestic Proceedings and Magistrates' Courts Act 1978 
  • the Matrimonial Homes Act 1983. 


Courts also had powers to grant orders ancillary to other matters, such as  divorce, or an action for assault and trespass. In practice, which legislation was used depended on a number of factors, such as the woman’s marital status, whether she lived with her abuser, and the preferences of local solicitors.  Some orders had a power of arrest attached, and this made them somewhat more effective.  However, research has shown that injunctions and protection orders were more often breached than not; and that enforcement was virtually impossible (Barron, 1990; unpublished WAFE refuge surveys 1992 and 1994.)

Some problems with the legal process

Abused women face a number of problems within the legal process. For example, gaining access to legal representation was often stressful and confusing. Lack of specialist services or interpreters meant that women from Black and Minority Ethnic communities were denied effective access to the law; and those women whose immigration status made them ineligible for help with legal aid experienced particular difficulties. The process of going to court  was itself traumatic and frightening, partly due to the lack of separate waiting areas, so that applicants and their abusers often had to share the same small space.  Women’s Aid research at the time highlighted the inadequacy of any legislation without effective implementation and training for court staff on the impact of domestic violence on women and children (Barron, 1990). The courts, like  many other agencies, have often failed to understand the whole range of emotional, psychological and practical reasons  why many women stay with or return to a violent partner.  This can and still does often have the effect of the women not being taken seriously.
Growing awareness of these problems led to the recommendations made in the Law Commission's report  Domestic Violence and the Occupation of the Family Home published in May 1992. The Report took account of evidence from lawyers and lay advocates, including Barron’s (1990) findings about the ineffectiveness of injunctions. The National Inter-agency Working Party report in 1992, and evidence from a wide range of statutory and voluntary agencies to the 1992 Home Affairs Select Committee Inquiry into Domestic Violence confirmed the inadequacy of protective remedies for abused women under the civil law. The reforms to civil remedies for protection from violence in the home, introduced by the Family Law Act 1996 (sections 30-63) were therefore long overdue.

Family Law Act 1996

Part IV of the Family Law Act 1996 has been in force since October 1st 1997.  It rationalises and consolidates the previous mishmash of legislation governing injunctions and protection orders, and was intended both to remove anomalies and to make civil protection against domestic violence more effective.

This legislation provides a single set of remedies available in all Family Courts  including the High Court, the County Court, and Family Proceedings (Magistrates’) Courts. It extended eligibility to a wider range of people in family or similar relationships – and these have subsequently been further extended (under the Domestic Violence Crime and Victims Act 2004.)
 
There are two main types of injunctions which can be applied for under Part IV of the Family Law  Act 1996:

  • non-molestation orders,  for  protection from  all forms of violence and abuse; 
  • occupation orders – sometimes called exclusion orders, or ousters -  which regulate the occupation of the shared/family home.

These orders are 'free-standing'  injunctions; that is, they can be applied for directly and  do not have to be made ancillary to any other proceedings, such as divorce.

There are also a number of related new provisions under the Act: 

  • the court, when making an emergency protection order or interim care order for a child under the Children Act 1989, can exclude a person who poses a risk to the child; 
  • the Act also makes provision for the transfer of tenancies between spouses and cohabitants. 

Provisions for enforcement, through the attachment of powers of arrest, were strengthened under this act – and were further strengthened by the implementation of the Domestic Violence Crime and Victims Act 2004. (See below)

Who can use this law?

Eligibility for orders under the Family Law Act 1996 Part IV depends on the type of order, and the relationship between the applicant  and the other party (the respondent). The Act considerably extends the categories of people who may seek protection. It introduces the new concept of 'associated persons':  to apply for a non-molestation order or an occupation order the applicant must be 'associated' with the person against whom they wish to take out an order.

S.62(3) originally defined 'associated  persons'  as people who:

  • are or have been married to each other;
  • are or have been cohabitants;
  • have lived in same household (other than one of them being the other's tenant, lodger, boarder or employee);  
  • are relatives (this is defined to include most immediate relatives); 
  • have agreed to marry (evidenced by a written agreement, the
     exchange of a ring, or a witnessed ceremony);
  • in relation to a child (they are both parents, or have or have had
     parental responsibility for a child)
  • are parties to the same family proceedings.


This definition has since been extended by the Domestic Violence Crime and Victims Act 2004 - see below.

Protection from violence or harassment for those not eligible to apply under the Family Law Act 1996 still has to be sought through common law actions 'in tort' - that is, as ancillary  to other legal actions, for example, actions suing for assault, trespass, or under the injunction provisions of the Protection from Harassment Act 1997.
Within the Act an order may be sought to protect from molestation, or regulate occupation rights for,  the applicant and any "relevant child" . A relevant child is defined  under s.62(2) as:

  • any child who might be expected to live with either of the parties involved; 
  • any child who is the subject of adoption or Children Act proceedings; or  
  • any  other child whose interests the court considers relevant.

This extends the scope of previous remedies that were available, which were previously limited to any 'children of the family' .

Non-molestation orders

Under s.42 of the Family Law Act 1996, non-molestation orders reproduce and extend the previous powers of the courts to make orders prohibiting a person (the respondent) from molesting another person associated with him or any relevant child. The term molestation is perhaps unfortunate as it tends to denote sexual molestation and can be confusing to potential applicants or respondents. However, as under previous legislation, an order prohibiting molestation can include both general or particular acts of molestation, none of which need be overtly 'violent', and can be used to order someone to stop using or threatening violence against (usually) a  woman or a relevant child, or to stop intimidating, harassing, or pestering them. It can also have very specific instructions in it to suit a particular case - for example, it could order an ex-partner to stop telephoning or pestering  the applicant at work.
The court can make an order either if the applicant is an 'associated person', or, by its own motion, within any family proceedings that the respondent is party to, if the court considers it of  benefit to any other party or relevant child.  Children under 16 may apply for non-molestation orders with leave of the court [s.43(1)] if the court decides the child has sufficient understanding.
In deciding the outcome of any application, courts must have regard to the health, safety and well-being of the applicant or any relevant child.  'Health' is defined broadly in s.63(1) to include both physical and mental health.
An order may be made for a specified period, usually six months, for an open-ended period, or until a  different order is made if further provisions are needed. However if the court decides of its own volition that an  order should be made in the course of other family proceedings (for example, under the Children Act 1989) then the order will cease to have effect if those proceedings are withdrawn or terminated.

Occupation orders

An occupation order regulates the parties’ occupation of their present, former or intended home, and replaces all  previous legislation (see above) and terminology. Previously, similar orders were known as ouster orders and exclusion orders.
An occupation order may take a number of forms, including :

(a) enforcing  the applicant's right to remain in the home;
(b) requiring the other party (respondent) to allow  the applicant to enter and occupy the home;
(c) prohibiting, suspending, or restricting the respondent's right to occupy the home; 
(d) excluding the respondent from the home itself and/or from a defined area in which it is situated.
 
These orders do not, however, alter either party’s financial interests in  the home.
 

“Entitlement” to occupy
The Act introduces a new concept of “entitlement”.

An entitled person is someone who has some legal right to occupy the property, e.g. s/he is the freehold owner, tenant, contractual licensee or someone with a beneficial interest; or s/he has matrimonial home rights. The term ‘matrimonial home rights’ in  the new legislation replaces the term ‘rights of occupation’ contained in the Matrimonial Homes Act 1983.  Spouses of entitled persons automatically have matrimonial home rights under the Act.  These rights are also sometimes obtained through the divorce process.
 
A non-entitled person has neither the legal right to occupy the property, nor matrimonial home rights.

Who can apply for an occupation order?

Occupation orders may be granted under five different sections of the Act depending on the nature of the relationship between the parties and whether the applicant has an existing right to occupy the home.  The parties must first be associated (see 6.2 above).  The main differences between the five different categories of order are:

  • the range of  people  who can apply; the criteria the court must use in assessing whether to grant an order; and 
  • the length of time the orders  may last.


An application may be made:

(a)  Under s.33, by a person who is entitled to occupy the home because  she is either a  legal owner or tenant, or has matrimonial home rights in relation to it against  another person with whom she is associated, whether or not that person is also entitled to occupy the home. This provision will apply to most married couples and cohabitants and others who are sole or joint owners or tenants of their home. An order can be made for a specified period or until further order. 
 
(b) Under s.35, by a former spouse who is not entitled to occupy the home or who has matrimonial home rights in relation to it against   his or her former spouse who is so entitled. An order under this section can only be made for an initial period of six months, but can be extended for periods of up to six months on one or more occasions.

(c) Under s.36, by a cohabitant or former cohabitant who is not entitled to occupy the home against the other cohabitant or former cohabitant who is so entitled.  An order under this section can be made for six months, and can be extended for one further period of up to six months.
In the case of non-entitled former cohabitants this is an extension of the previous law, as previously exclusion of a former partner was not possible. However, restriction to a maximum of one year discriminates against  those who have cohabited for several years with a partner, and may well have made a substantial personal and economic contribution to the family home.

 (d) Under s.37, by one spouse or former spouse against the other spouse of former spouse where neither of them is entitled to occupy the home. This situation could include a couple lodging in a relatives’ or friend’s house, or squatting. An order can be made for up to six months, and extended on one or more occasions, for further periods of up to six months.

(e) Under s.38, by one cohabitant or former cohabitant  against the other cohabitant or former cohabitant, where neither of them is entitled to occupy the home. An order can be made for up to six months, but can be extended for a further period of six months.

Grounds for making an occupation order

The above five sections, 33, 35, 36, 37, 38, each contain details of the matters which the Court should consider in deciding whether to make an occupation order.  The criteria differ somewhat between the sections but in general courts must have regard to all the circumstances of the case including:

  • the respective housing needs and resources; 
  • the  respective financial resources; 
  • the likely effect of the order on the health and safety, and well-being of the parties or any relevant child;
  • the conduct of the parties in relation to each other and otherwise.


Where the application is under s. 35 (non-entitled former spouse), the Court must also take account of the length of time since the parties ceased to live together and since the marriage ended, and whether there are other proceedings taking place.

In an application under s.36 (non-entitled cohabitant) the Court should also consider:

  • the length of the cohabitation; 
  • the length of time since separation; 
  • whether or not there are any children; 
  • the existence of any pending proceedings.


Oringinally, in addition, under the Part 4 section 41 of the 1996 Act, the court was required to have  regard to the nature of the relationship, including the fact that they have not “given each other the commitment involved in marriage”.   This has now been repealed by the Domestic Violence Crime and Victims Act 2004.

Additionally, where the court considers whether to give a right to occupy to a cohabitant or former cohabitant with no existing right (a non-entitled cohabitant) and has regard to the nature of the parties’ relationship, it must also consider the level of commitment in the relationship.
 
Balance of Harm Test

Additionally, the Act introduces the 'balance of harm' test, which in some cases will oblige the court to make an order. In applications by spouses, former spouses, and applicants entitled under s.33, it is mandatory for the court to apply the test, the results of which override other criteria.
“If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order.... is not made, the court shall make the order unless it appears to it that:

a)  the respondent or any relevant child is likely to suffer significant harm.... if the order is made; and
b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.’ [s 33 (7)]”

'Harm'  is defined under s.63  as 'impairment of health'  (includes both physical and mental) or 'ill treatment', and in relation to a child, means ill-treatment or the impairment of health or development.

In applications by cohabitants or former cohabitants under sections 36 and 38, the court is required to have regard for the balance of harm test but it does not override other criteria. The implications for implementation of the balance of harm test are further discussed below.

Further provisions: Ancillary orders

The court can also make ancillary orders to occupation orders, imposing obligations on either party with regard to repairs and maintenance,  discharge of rent or mortgage, or other  payments, as well as  use or care of possessions or furniture. These must be made, however, with  regard to the financial needs and resources, or the financial obligations, of the parties.

Without notice (emergency) orders (also known as ex parte)

A court may make ex parte non-molestation or occupation orders  (without  the normal period of notice to the respondent of the proceedings) if it considers it just and convenient to do so. The court must have regard to all the circumstances including whether -

  • there is ‘a risk of significant harm’  to the applicant or child; 
  • the applicant likely to be ‘deterred or prevented’ from making any application, if the order is  not made immediately
  • the respondent is evading service of notice of an  inter partes hearing.


In all cases a full hearing should follow as swiftly as possible to enable the respondent to have the opportunity to make representation.

Powers of arrest

These shall  be attached to one or more provisions of  an occupation order (and, previous to July 2007, to a non-molestation order) where the  respondent has used or threatened (physical) violence against  an applicant or any relevant child unless  the applicant or child is  adequately protected without  a power of arrest.  This duty does not apply to ex parte orders but the  court may still attach  a power of arrest where:

(a) violence is used or threatened; and 
(b) there is a risk of significant harm, if a power of arrest  is not attached  immediately.

Under The Domestic Violence Crime and Victims Act 2004, since July 1st 2007, a breach of non-molestation order is now a criminal offence. “A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence and is liable to a fine or imprisonment of up to five years”.

This should strengthen the power of court orders and means that in future the police will treat any breach of any order just like other criminal offences in cases of domestic violence. However the option of returning to the county court or family proceedings court for contempt of court is still retained, but it is not yet not clear how this will work in practice.

Occupation orders are treated differently, and a separate “power of arrest” is still needed.

Undertakings

An undertaking is a promise made to the court to refrain from certain behaviour, and in the past has been used by the courts as an alternative to granting an order. These are likely to be less easy to enforce in practice as no power of arrest can be attached, although the respondent can be committed for breach, and  research has shown how unsatisfactory such promises may be in affording protection from violence  (Barron,1990). However, under s.17 the court  cannot accept  an undertaking if a  power of arrest would (normally) be attached,  i.e. where (physical) violence has been used or threatened; and since breach of a non-molestation order has become a criminal offence, this may mean that, in practice, undertakings may no longer be used.

Other provisions and amendments to other legislation

The Act made a number of other provisions, including changes to police powers, in relation to breaches and enforcement of orders, and others with direct reference to the protection of children:

  • An important amendment to the Children Act 1989, under s.52 and Schedule 6 enables the court  when making an emergency protection or interim care order, to make an order to  exclude the suspected abuser from the house, removing  him instead of the child. (See Children briefing)
  • Within the general provisions of the Family Law Act 1996, children under  16 may also apply for  orders if given  leave of court  to do so, for which the court must judge that they have sufficient  understanding.
  • The Act brings in new powers under s.53 and Schedule 7 to  transfer joint tenancies into one party’s name (see housing law briefing), a remedy not previously available for cohabitants. This may enable abused women who are afraid to stay in their former home area to exchange their existing tenancy for one in another area and result in women and children having to spend less time in refuges or other temporary accommodation. However, these powers  do not apply in the magistrates’ court.


Domestic Violence Crime and Victims Act 2004

Part IV of the Family Law Act 1996 has been further amended by the Domestic Violence Crime and Victims Act 2004, the following provisions of which were implemented on 1st July 2007:

  • a breach of a non-molestation order is now a criminal offence; 
  • ‘cohabitants’ now includes same-sex couples on the same basis as heterosexual couples; 
  • ‘associated persons’ now includes non-cohabiting couples, sanme sex relationships, and cousins.


Section 1. Breach of ‘non molestation order’ to become a criminal offence, with a maximum penalty of 5 years.

Civil injunctions (under Part IV of the Family Law Act 1996) offer temporary protection through non-molestation orders or occupation orders.  (See above) However, the breach of an injunction is often not effectively enforced.  This new provision under section 1 of the DVCVA 2004 is intended to address this issue.  Until now a breach has only been punishable as a civil contempt of court.  From 1st July 2007, a breach of a non-molestation order may be dealt with by the criminal courts  - rather than by the family proceedings (magistrates’) court or the county (family) court where the original order was made.   This procedure will replace that of attaching a power of arrest to such an order.
 
This does not affect non-molestation orders made before July 1st 2007. Breaches of non-molestation orders issued before July 1st will continue to be treated as a civil contempt of court. As before, the judge may use a sanction, or may decide to vary the order.  In the latter case, it will then be subject to the new rules. 

What happens now when a non-molestation order is breached?

When a non-molestation order  - either made after July 1st, or an earlier order which has been varied - is breached from now on, the breach will be treated like any other criminal offence, meaning that the perpetrator may be arrested, charged and brought before the magistrates’ court. The victim, who was the applicant in the original civil process, becomes the key witness in a criminal case. As in other criminal cases, the decision whether or not to prosecute will be made by the Crown Prosecution Service (CPS) in conjunction with the police, where there is sufficient evidence and it is in the public interest to do so. The maximum custodial sentence for breaches dealt with as a criminal offence is 5 years.

This process means that the woman becomes a witness in a criminal case rather than an applicant – and that potentially has both advantages and disadvantages.

The advantages of this change are that –

  • it relieves the woman herself of the burden of taking action;
  • it should provide a stronger sanction – particularly for those cases in which (in the past) a power of arrest has not been attached;
  • the woman is not liable for any costs of a prosecution.

The disadvantages are that –

  • it takes the process out of the woman’s hands, and the CPS will be able to pursue proceedings against her wishes – so it may be disempowering, and have consequences which she is powerless to stop;
  • she may be unhappy about criminalising her (ex-)partner – who may, for example, be the father of her children. This may be a particular concern for women from Black and Minority Ethnic communities, who are often particularly reluctant to seek help from the police, because of the fear of racist or discriminatory treatment.
  • criminal cases are normally open to the public and the press – in contrast to applications made in the family court, which are held in chambers (i.e. only people involved in the case are allowed in the room).  Although there is a provision for reporting restrictions to protect the identity of victims/witnesses in criminal courts (1) (both magistrates’ and Crown courts), this has up to now been used only rarely in domestic violence cases.

Can breach still be dealt with by the civil courts?

If the woman is unhappy with instigating a criminal process, she should still be given the option to pursue the breach through the civil courts, using the standard processes available prior to July 1st 2007.  In this case, she should apply to the court that made the original order.  It is then up to the judge or magistrate to decide whether there is sufficient evidence to support her case (i.e. that the order has been breached) and then decide on a penalty. Family Proceedings Courts can hand down custodial sentences of up to two months, and county courts up to two years.

The woman should in principle be able to pursue this route even if the police are called out to an incident where a non-molestation order has been breached.  Alternatively, if she does not want to involve the police – perhaps from a wish to avoid to the criminal prosecution process (2) - she may apply separately for a warrant of arrest, or have the matter dealt with in the civil court as outlined above.  However, now that criminal prosecution is the recommended response for breach of injunction, it is not clear whether legal aid would continue to be available for her to pursue committal proceedings in the county court (3) . 

Note that breach of an occupation order, in cases of domestic violence, is not a criminal offence, therefore any such breach will still have to be taken back to the family court, and enforced as contempt of court, as previously.  Where an offender breaches both an exclusion order and a non-molestation order  - a relatively common situation - the woman will be faced with appearance at two separate courts on two separate occasions (except in those very few areas where there is one integrated Domestic Violence Court).  This means additional disruption, and possibly further expense due to childcare provision and/or loss of earnings.

Section 4: Extending availability of injunctions to same sex couples, and to those who have never cohabited. 
 
Part IV of the Family Law Act was extended to include same sex couples on and after 5th December 2005 (following the implementation of the Civil Partnership Act 2004) and – on July 1st 2007 – also to those who, while not living together, have or have had “in an intimate relationship of significant duration”.  Both these changes are to be welcomed.  However the definition of the term “an intimate relationship of significant duration” has yet to be decided by the courts, which will look at the individual circumstances in each case. Intimacy and duration should be the key elements in determining whether the relationship was such that could give rise to issues of power and control. It is not intended that this should include brief sexual encounters, for which the Protection from Harassment Act 1997 is available. 

For more information, see Women’s Aid’s Briefing on the Domestic Violence Crime and Victims Act.

How much do Part IV of the Family Law Act 1996 and the Domestic Violence Crime and Victims Act 2004 help abused women and children?

The strengths of these pieces of legislation are that they enable a much larger group of applicants who have been abused, threatened or assaulted by someone with whom they are living or have (or have had) a family-type relationship to gain access to a uniform package of protective remedies in both magistrates and county courts. The legislation is also now more accessible for users, as well as advisers and legal professionals.

While other injunctive remedies  are available under common law (as well as the civil remedy against harassment introduced within the Protection for Harassment Act 1997 alongside the new criminal offences – these orders are not likely to be as effective as powers of arrest cannot be attached.

Part IV of the Family Law Act 1996 (now extended by the Domestic Violence Crime and Victims Act 2004) has led to some significant improvements. The extension of powers of arrest and the subsequent criminalisation of breach of non-molestation orders should make these orders more readily enforceable.

Monitoring of these new provisions is needed, however.  Anecdotal evidence suggests that practice is still very patchy, and that there is a problem with getting an emergency occupation orders (to get the violent man out), and the courts will not attach powers of arrest to an emergency occupation order until the alleged abuser has been served notice and has a chance to come to court. This means that at the time of most vulnerability and risk (when female homicide statistics are highest), women are not fully protected.  The implementation of s.1 of DVCVA 2004, criminalising the breach of a non-molestation order, may help in some respects – but breach of occupation orders still has to be dealt  with by the civil courts.

The ‘balance of harm’ test

Some potentially retrogressive amendments were also introduced during the passage of the 1996 Act. In particular, in relation to occupation orders, the conduct of the parties was re-introduced as a criterion, i.e. their past behaviour. In relation to cases of domestic violence, this means that conduct not related to matters of safety and protection from violence may be a factor when considering whether or not to make an order. Research since 1978 has consistently confirmed how violent men frequently cite the conduct of the non-violent partner (in relation to domestic services, mothering, or sexual fidelity) as 'provoking' or 'causing' the abuse (Barron, J., 1990).  Such justifications have also been accepted by courts as reasons not to grant occupation orders, or in more extreme cases within criminal law, as defences for killing current or former female partners on grounds of 'provocation'. 

On the other hand, consideration of conduct (i.e. violent or abusive behaviour) could be helpful in certain contexts. There has always been concern that in cases where women who are at risk of violence from their partners or ex-partners apply for orders after many years of abuse, the effects of that abuse on their mental or physical well-being may be used against them. For instance, the respondent might argue that his partner is mentally unstable and unfit to have care of children, which is itself often a determining factor in who is permitted to occupy the property. In such cases the removal of all considerations of past behaviour could lead to a 'snapshot' picture at the time of application, without sufficient consideration of its causes, of harm in the past, and the potential for harm in the future. In practice, whether consideration of conduct proves to be positive or negative for abused women is likely to be related to the applicant’s access to effective legal representation.

The 'balance of harm' test (to be used when assessing the need for occupation orders) is intended to be more effective not only in addressing physical violence and abuse but  also  mental and emotional cruelty . The balance of harm test also gives greater attention to the needs of children.
A second reference to conduct has been introduced into the 'balance of harm test ' itself. Any 'significant harm' suffered by the applicant and any relevant child has to be ‘attributable to the conduct of the respondent’, whereas this is weighted against (any) harm likely to be suffered by the respondent or any relevant child. The effect of this appears to change 'the balance of harm test' to favour the respondent (violent partner) as all forms of potential harm (defined as impairment of health or ill-treatment) may be considered on his part, whereas only harm attributable to his behaviour may be considered in relation to the applicant. It has been pointed out that the fairness of the balance of harm test is now open to question, as this amendment could give unfair weight to an abuser's rights to occupation of the home over a survivor/victim's rights to protection from violence through a temporary order. However, interpretation of this test remains to be challenged in court practice or by case law - which could consider the widest definition of harm suffered by the applicant attributable to the respondent’s conduct.  For example, if a woman is forced to leave her home, the harm she suffers as a result of becoming homeless could be considered to be due to the respondent’s conduct.

Legal Aid

Even those women who wish to obtain remedies under this Act may find that they are unable to do so because of the increasing difficulty in getting public funding (community legal services funding) to pay for their legal costs. Recently, there has been increasing concern about the difficulties of accessing public funding to pursue applications for injunctions.

Further considerations

Part IV of the Family Law Act 1996 in theory allowed new opportunities for a more holistic response to domestic violence, through the more effective linking of action under the criminal law and protection for the future under the civil law.

Section 60 (which has never been implemented) offered the opportunity to pilot new powers by third parties to take out injunctions on behalf of abused women; for example, for police to take out orders on behalf of women at the same time as going before magistrates for criminal proceedings.  Such measures have been used very successfully in Australia and the United States (with the woman’s consent), and carry a number of advantages, for example, their speed and the removal of problems associated with legal aid.
The Domestic Violence Crime and Victims Act 2004 should provide further opportunities for protection for domestic violence survivors and improve on the existing provision within the Family Law Act 1996 but we have to wait for implementation to see how effective these will be in practice.

 Summary

  • In the early 1990’s the need for better protection from domestic violence under the civil law was highlighted through a number of reports and enquiries; research has shown that injunctions and protection orders were more often breached than not, and that enforcement was virtually impossible. 
  • Abused women face a number of problems within the legal process: access to legal representation; lack of specialist services or interpreters for Black and ethnic minority women; the trauma of the court process; the lack of training for court staff on the impact of domestic violence on women and children and the reasons  why many women stay with or return to a violent partner.  
  • A review of the law by the Law Commission led to recommendations for change, supported  by many statutory and voluntary bodies, and eventually the introduction of the Family Law Act 1996, Part IV in October 1997. 
  • Part IV of the Family Law Act 1996 provides a single set of remedies available in all Family Courts  including the High Court, County Court, and Family Proceedings (Magistrates) Court. There are two main types of  orders under the Act: occupation orders, which regulate the occupation of the family home and non-molestation orders,  for  protection from  all forms of violence and abuse. 
  • Eligibility for orders under the Family Law Act 1996 Part IV depends on the type of order, and the relationship between the applicant  and the other party (the respondent). The Act considerably extends the categories of people who may seek protection. It introduces the new concept of 'associated persons'. This is soon to be extended under the Domestic Violence Crime and Victims Act 2004 to include non-cohabiting couples and lesbian and gay couples. 
  • Non-molestation orders reproduce and extend the previous powers of the courts to make orders prohibiting a person (the respondent) from molesting another person associated with him or any relevant child. When DVCVA 2004 is implemented, breach will be a criminal offence. 
  • An occupation order regulates the parties’ occupation of their present, former or intended home and replaces all previous legislation. An occupation order may take a number of forms, including, for example enforcing the applicant's right to remain in  the house or restricting the respondent's right to occupy the house. Occupation orders may be granted under five different sections of the Act depending on the nature of the relationship between the parties and whether the applicant has an existing right to occupy the home. 
  • The Court must consider a number of different criteria in deciding whether to make an occupation order including the respective housing needs and resources, the respective financial resources, the likely effect of the order on the health and safety, and well-being of the parties or any relevant child, the conduct of the parties in relation to each other and otherwise. 
  • The Act also introduced the 'balance of harm' test, which in some cases obliges the Court to make an order. In applications by those entitled by legal right to occupy the home, it is mandatory for the court to apply the test, the results of which override other criteria. 
  • The court can also make ancillary orders to occupation orders,  imposing obligations on either party with regard to repairs and maintenance,  discharge of rent or mortgage, or other  payments, as well as  use or care of possessions or furniture 
  • A court may make without notice non-molestation or occupation orders  (without the normal period of notice to the respondent of the proceedings) if it considers it just and convenient to do so. 
  • A court may accept an undertaking unless a power of arrest would (normally) be attached,  i.e. where (physical) violence has been used or threatened. 
  • Powers of arrest must be attached to one or more provisions of  a non-molestation or occupation order where the respondent has used or threatened (physical) violence against  an applicant or any relevant child unless  the applicant or child is  adequately protected without  a power of arrest. (From DVCVA 2004 implementation – there will effectively be an automatic power of arrest as breach will be a criminal offence) 
  • The Act makes a number of other provisions including: a specific amendment to the Children Act 1989  which enables the court  when making an emergency protection or interim care order, to make an order to  exclude the suspected abuser from the house; a provision for children under  16 may also apply for  orders if given  leave of court  to do so; new powers to  transfer joint tenancies into one party’s name, a remedy not previously available for (heterosexual) cohabitants.
  • The strengths of Part IV are that it enables a much larger group of applicants who have been abused, threatened or assaulted by someone with whom they are living or have (or have had) a family-type relationship to gain access to a uniform package of protective remedies in both magistrates and county courts; measures for enforcement have also been strengthened. The legislation is also now more accessible for users, as well as advisers and legal professionals 
  • Its weaknesses are firstly, the loopholes in eligibility: the legislation does not extend to those who have never lived with their abusers those, except where there has been a formal promise of future marriage, or if there is a child whom both are parents or have parental responsibility: equally homosexual partners can apply for occupation orders if s/he has existing rights to occupy the home (i.e. is a tenant or an owner) or for non-cohabiting couples or lesbian and gay couples. All of the above should change with the implementation of the Domestic Violence Crime and Victims Act 2004.  
  • Improved protection from violence still depends crucially both on access to public funding  which is now less accessible to people in paid employment  particularly  for those on low incomes and to its effective enforcement by the police and the courts.

Advantages and disadvantages of using criminal and civil law for abused women

Criminal law

Advantages

  • State takes action: not left to women 
  • Woman can feel that the violence is taken more seriously 
  • Abuser can be arrested immediately and easily and he can be held in custody for short periods · Abuser can be punished/removed from circulation for a certain period
  • There is a clear indication of who is at fault 
  • Bail conditions can be more powerful than an injunction (but have limited duration) 
  • Proceedings have a symbolic value - domestic violence is not acceptable 
  • No problems with costs, or access to legal aid 
  • Special measures available in court to make process easier and protect the victim from the perpetrator
  • Changes in prosecution policy and co-ordinated intervention are now improving safety and reducing time for cases to get to court in some areas.

Disadvantages

  • Woman is 'passive' witness – she may feel the situation is out of her control 
  • Proceedings are held in open Court (unless special measures are enacted)
  • The law is intended to punish the perpetrator, not protect the victim
  • The prosecution process can take a very long time 
  • Woman might not want the man prosecuted for a number of reasons (see above)
  • Court personnel attitudes: can be a lack of understanding of nature and dynamics of domestic violence
  • There is a risk of increasing the threat and danger to the woman and any children if effective interagency responses are not developed 
  • Cannot deal with many ‘non-physical’ aspects of domestic violence

 

Civil law

Advantages

  • Woman makes choice of what protection is sought
  • Can deal with a wide range of harmful behaviours
  • Court hearing is in closed court
  • Legal Aid may be available  · Woman can get immediate protection (in theory)
  • It is intended to protect the woman and her children and not punish the man 
  • Can offer protection for the future and a route to safe housing



Disadvantages

  • Costs and/or limited access to legal aid 
  • Some women are not eligible or do not have the same rights to protection 
  • Court personnel attitudes: can be a lack of of understanding of nature and dynamics of domestic violence
  • Pressure on court time and other factors means women may be pressed to accept undertakings instead 
  • Reluctance to grant ex-parte occupation orders and ex-parte powers of arrest
  • Penalties are non-custodial unless there is a severe and recurrent breach
  • There is a risk of increasing the threat and danger to the woman and any children if effective interagency responses are not developed




References

1. Section 46 of Youth Justice and Criminal Evidence Act 1999 [reports relating to adult witnesses] has been in effect since 7th October 2004.
2. 79% of victims of domestic violence do not report the abuse to the police, according to British Crime Survey figures.
3. That is, although this route will still be available in principle, it has not been made clear whether CLS funding will continue to be available for it.

Copyright © Women's Aid Federation of England. All rights reserved.
Adapted from Hester, Marianne, Pearson, Chris and Harwin, Nicola, with Abrahams, Hilary (2nd edition 2006)  Making an impact: Children and domestic violence – a Reader (London: Jessica Kingsley Publishers)