‘Women at risk failed by new domestic violence law’ read the extraordinary Times headline of 14th April 2008, just months after the DVCVA’s implementation in July 2007, when it reported the President of the Family Division, the top family judge, was seeking an urgent meeting with Justice Secretary to consider its repeal. Disastrously for victims, desperate to separate their own and their children’s lives from abusers without risking further harm, the President’s plea fell on deaf ears.
The DVCVA amended the 1996 Family Law Act (FLA) part IV to make breach of a non-molestation order a criminal offence, to be tried in the criminal courts. It prevented the family courts from enforcing breach of their own orders swiftly through contempt proceedings and forbade judges from attaching powers of arrest to them.
Before that, judges had been mandated to attach powers of arrest to orders where the applicant’s statement alleged there had been violence or threats of violence. They saw them as a strong deterrent against breach.
Breach, in the form of violence or threats of violence from the respondent directly, or indirectly through someone prompted by him, brought instant consequences: arrest, a night in the cells (three if arrested on a Friday) and contempt of court proceedings the next working day with a maximum 2 years’ custody and/or, very rarely, a fine. If the hearing had to be adjourned, the court could remand him in custody but the proceedings had to conclude within 28 days of alleged breach and almost all concluded within a week. Where, as is the nature of domestic abuse, there was no corroborative evidence such as a third party witness, a judge could reasonably prefer one side’s version to the other’s, the incident being so fresh.
Now a victim of breach, however major or seemingly minor the alleged breach, must rely on the police and Crown Prosecution Service (CPS) to prosecute breach of an order the circumstances of which they know nothing, in proceedings that may only be brought if there is a realistic chance of conviction and if it’s in the public interest to do so.
The unfortunate victim (who may have Children Act or other related proceedings continuing in the family court) loses her status as applicant, loses her legal aid – and the non-molestation order’s protection – to become a witness in a criminal court hearing of uncertain date, length and outcome. And, since the maximum sentence for breach is now 5 years, anyone charged with breach is entitled to opt for Crown Court Trial, with legal aid and a barrister to defend him!
Note how the DVCVA switches the focus of attention and resources from protection of the victim to treatment of the perpetrator! (For simplicity, I refer to victims as female and perpetrators as male, as most victims are female and most perpetrators male. The civil protection offered by the FLA part IV legislation is gender-neutral and the ambit of relationships it covers is wide).
But, as concerning as it is ludicrous, a victim who stands the course of criminal proceedings resulting in a conviction, may find her former abuser living back with her and any children she cares for, under a community service order and perhaps a ‘better relationships’ course. If the community service order is breached, she faces return to court and, when abusive behaviour is rooted deep in childhood trauma, it is unlikely any behavioural improvement is easily sustained.
See how the focus of attention and resources moves from protection of the victim to treatment of the perpetrator! (For simplicity, I refer to victims as female and perpetrators as male, as most victims are female and most perpetrators male. The civil protection offered by the FLA part IV legislation is gender-neutral and the ambit of relationships it covers is wide).
Since the DVCVA’s implementation there have been few prosecutions of non-molestation orders. Most are breached with impunity – despite far more of these orders being applied for by victims and made by the family courts than the 28 day protective orders the police have power to apply to magistrates for – but infrequently do. This ‘systemic failure’ of the criminal justice system to protect victims of domestic abuse, including harassment and stalking – which are covered under the FLA part IV legislation – is well documented in a 51 page report supporting a ‘super-complaint’ (19.03.20) to a national watchdog by the Centre for Women’s Justice.
The DVCVA has clearly failed to send abusers the ‘strong message’ the then Attorney General, Harriet Harman, intended. Indeed, making breach a criminal offence – with legal aid cuts which have creating far more litigants in person -has made family court proceedings more adversarial, more fragmented, less predictable and harder to resolve.
It is well known that victims of don’t find the criminal justice system helpful when they want to safely extricate themselves from abusive partners, or former partners who won’t accept a victim’s wish to end a relationship.
This was impressed on legislators in the 1970’s when Erin Pizzey’s ‘battered wives’ hit the headlines, resulting in the seminal 1976 Domestic Violence Act, the first civil legislation to tackle the problem. Many women who crowded into her Chiswick refuge later returned to their abusive homes and partners, while knowing this could be to their own and their children’s psychological, physical – and even fatal –detriment. They did this not just from fear of retaliation or manipulation by the abuser, his family or associates but also because simply leaving home did not resolve any of the huge practical issues keeping them with the abuser.
The 1996 Family Law Act part IV provisions offered a single, straightforward procedure for victims of many kinds of domestic abuse to apply to the civil court for protection for themselves and their children via domestic violence injunctions.
As a family law solicitor working in firms with a legal aid franchise, I could grant a client emergency legal aid through devolved powers, take initial instructions and prepare a statement to support an ex parte application (without notice to the other side) before a district judge the next day.
Most judges would fit in a short directions hearing before their afternoon list. The applicant’s statement would mainly comprise examples of behaviour now termed ‘coercive control,’ with descriptions of sporadic incidents of violence and any previous contact with police, social or medical services. Any earlier proceedings or behavioural difficulties of children linked to witnessing abuse would also be included. A client could be reassured that, when the respondent was served with notice of the inter partes hearing date (which both sides could attend) and a copy of the power of arrest (the original of which would be lodged at her local police station) she would be well protected from retaliation. Few non-molestation orders were breached, as Judge Platt’s article in Further Reading suggests.
Non-molestation orders were never meant to be a punishment in themselves, or indeed to imply any wrongdoing by the respondent. They simply forbid the respondent from engaging in conduct towards another person none of us should engage in anyway. Their purpose is to control the situation and protect the applicant and children while the court focuses on related issues which make it hard for her to permanently leave an abusive relationship.
Usually made for 6-12 months ‘or further order’, they give time for the court, through a series of short, intermittent ‘directions hearings,’ to resolve, say, each party’s long-term accommodation needs, their property, finances and safe child contact – if appropriate.
We should ditch the myth that making breach of a non-molestation injunction ‘a criminal, arrestable offence’ was helpful to women. It is still widely believed by domestic abuse advisers that judges can attach powers of arrest to orders. ’An arrestable offence’ (the seductively misleading term is now obsolete) is simply a criminal offence with a maximum prison sentence of 5 years. It does NOT mean automatic arrest, still less a charge, still less a conviction, still less a safe passage for women and children from abuse – rather the reverse.