The Legislation

Domestic abuse happens behind closed doors

1976 The Domestic Violence Act was the first civil law to protect victims of  abuse from further harm (whether harassment, intimidation, threats or actual violence) in an existing or former relationship. The court could make protective orders called non-molestation injunctions, namely orders forbidding undesirable behaviour while it considered underlying issues. ‘Ouster’ orders let applicants remain for a period in the former family home, regardless of property/tenancy rights. Almost all applications were made before a district judge in the county court, very occasionally before lay magistrates in the family proceedings court.

They were actually interim (temporary) orders, made before a judge in chambers in a short directions hearing on the basis of the applicant’s statement, without the need to notify the other side (‘ex parte’) providing the statement expressed the fear that, if forewarned, the respondent would pressurise the applicant to withdraw. Orders were made usually for 12 months ‘or until further order’- should the order be contested, when the lower standard of proof (the balance of probabilities) prevailed.

However, all that respondents were being forbidden from engaging in was behaviour that no person should inflict on another, in any event. The respondent had no need to admit any wrongdoing, nor was he at risk of a criminal record.

The standard format enjoined the respondent not to harass, intimidate or use violence against the applicant directly or through another. But only heterosexual couples were covered and orders were often breached. Compliance was much higher if the judge attached a discretionary power of arrest to the ‘violence/threats of violence’ clauses in the order. On reported breach the police had to arrest the respondent and return him to court the next day for contempt of court proceedings. Without the power of arrest the client would be unprotected from the moment of breach to the time it took to apply to extend the legal aid certificate and then the contempt application. With several days’ delay there was a risk of her being harmed or threatened and discontinuing. Police would refer clients to me for injunction orders, advising them to get a power of arrest attached because ‘without a power of arrest they (are) not worth the paper they’re written on.’

1989 The Children Act is the major piece of child protection legislation in the UK, making the welfare of every child the primary concern. Covering both private and public law proceedings, it includes three principles: First, delay is likely to be prejudicial to the child’s welfare. Second, ‘the welfare checklist,’ with the principle that the best interests of the child prevail. Third, to encourage adult parties to reach agreement, the ‘no order’ principle – that the court should only make an order if it considers it would be better for the child than not so doing. If an order was necessary, then it was desirable to have an order agreed by both parties, as such an order is far more likely to be kept than one imposed by the court.

1996 The Family Law Act part IV legislation replaced the 1976 Domestic Violence Act, hugely strengthening the protection afforded applicants. The categories of those entitled to be classed as applicant and respondent (‘associated persons’) were also much widened. For example, an elderly parent being threatened for goods or money by their drug-addicted adult child. To encourage compliance, district judges were now actually mandated to attach a power of arrest to orders where the applicant’s sworn statement alleged there had been violence or threats of violence.

An allegation by the applicant of breach of the ‘violence/ threats of violence’ part of the order would result in the immediate arrest of the respondent, who had to be produced before a judge within 24 hours. The police had only to arrest lawfully under the power of arrest –  no danger of being sued for wrongful arrest or false imprisonment –  leaving proof of breach and the penalty (up to two years’ imprisonment or a fine) to the civil court. The vast majority of injunctions were obeyed. The sanction of immediate arrest, a night in the cells – three if arrested on a Friday – and a court hearing the next working day would curb the retaliatory impulses of even the most sociopathic, drug-addicted, alcohol-fuelled respondent. Thus non-molestation orders with powers of arrest attached ably performed their function of controlling a situation at that time most dangerous for applicants – when their overriding wish was to separate themselves and their children safely from the respondent. Although contempt of court proceedings had to be issued on notice to the respondent if clauses in the injunction (forbidding harassment or intimidation, say, not involving violence or threats) were reportedly breached, these clauses tended to be obeyed also.

July 2007 The Domestic Violence (Crime and Victims) Act 2004 (DVCVA) was implemented. Its main provision was widely seen by district judges and solicitors working in the field as likely to do victims ‘more harm than good’ but their voices were ignored. Its other main provision, creating a new offence of ‘causing or allowing the death of a child,’ arguably dealt victims a double blow.

This criminal Act made breach of a civil court non-molestation order a criminal offence. Simultaneously it abolished the judges’ ability to attach powers of arrest to non-molestation orders, so preventing swift enforcement of breach.

Now when an injunction is breached (much more common now there are no immediate consequences for the respondent), the applicant must either ignore the breach or rely on the police and Crown Prosecution Service to prosecute it – problematic enough, given the private nature of domestic abuse. (The clue is in the word ‘domestic’ – domestic abuse happens in the home, behind closed doors).

There is no provision in the DVCVA for the civil court papers, including the applicant’s statement, to be seen by the police, who will thus have no idea of what may be a horrific background to a seemingly minor breach. An applicant wishing to prosecute will find her legal aid ended and her injunction file closed, even if she has Children Act proceedings continuing in the family court, whilst the respondent – if charged – may qualify for full criminal legal aid.

Victims, as reluctant as ever to involve themselves in criminal proceedings or criminalise their partners or former partners, may no longer rely on the civil law’s robust and immediate protection.

At no time can this have been more needed than in the tragic case of Raneem Oudeh, reported in the Guardian (18th December 2018). She had obtained a non-molestation order –with no power of arrest attached, of course- to protect her from her former partner, Janbaz Tarin. She had previously contacted the police about his behaviour. She was stabbed to death, with her mother, outside their home in Solihull just after midnight on 27th August 2019. Two hours earlier, Tarin had confronted them, after following them into a shisha lounge, to be ejected after assaulting them both and making threats to kill.  She called the police three times to say she had been assaulted, that she had a court order against him and that she and her mother felt unsafe. Her first 999 call was made at 10.34pm. Her final call was made a few minutes before midnight, when she left a message asking where the police were, as she was waiting outside the house.  She was stabbed to death while on the phone.  Officers left a message a few minutes after midnight advising her to lock herself in, call them again if Tarin appeared, and they would visit in the morning.

When the police receive on average between two and three domestic abuse calls a minute, it is an impossible task for them to decide which to prioritise – and a lottery for victims – but with a power of arrest order in their possession they would not have to make such life-and-death choices.

The  DVCVA’s proposal to criminalise breach and prevent family court judges attaching of powers of arrest were met with bafflement by practitioners – district judges and family law solicitors working in this field. District Judge Roger Bird comments in the Preface to his book ‘Domestic Violence, Law and Practice’ 5th edition, published 2006:

It has to be said most practitioners involved in this area of law find the changes in the 2004 Act puzzling. There is no reason to think that the county courts have dealt with enforcement of the orders which they have made in anything other than a proper and effective way (it is difficult to be categoric about Family Proceedings Courts since they deal with such a small volume of work), yet the power to enforce their own orders by the remedy most valued by practitioners, namely the power of arrest, is to be removed and replaced by reliance on the prosecuting authorities. The obvious gaps and inconsistencies which will result are explained in the text and need not be considered here. Confidence in the ability of our legislators to grasp the issues involved was not increased by a reading of the parliamentary debates.

‘Domestic Violence, Law and Practice’ 5th edition, published 2006

A second provision of the DVCVA , in section 5, should also raise concern. This created a new criminal offence of  ‘causing or allowing the death of, or serious physical harm to, a child or vulnerable adult,’ the maximum custodial sentence being 14 years.

This has ensured a steady stream of convictions followed by hefty custodial sentences for bereaved mothers who are ‘vulnerable adults’ themselves. This is the case even when, as in most cases, it is undisputed that a child had been killed by the mother’s partner. For example, when the child is on a contact visit or when the mother is at work and has left the child in the partner’s care. There is a combination of ‘reasonable steps’ on which the mother may rely in her defence, including attempts to invoke criminal or civil proceedings or report the partner’s violence to police and social services although, unless such reports are recent and directly connected with the offence, little credit seems to be given.

This provision arguably impacts severely on abused women, ever-reluctant to involve the criminal justice system.  But even if women who are caring for children, and who have violent partners, are eligible for legal aid to obtain a civil order, the DVCVA – by making non-molestation injunctions without powers of arrest ‘not worth the paper they are written on’ – has made it more risky for them to take these steps. That is to assume they are even advised of the existence of these orders. But there is a second, perhaps more compelling, argument for the unfairness of the section 5 offence, which Georgina Vallance-Webb highlights in an article in Family Law, May 2008, ‘Victim or Criminal: The interplay between the ‘Failure to Protect’ Offence and Domestic Violence.’

The ‘convincing evidence’ for the co-occurrence of child abuse and adult domestic violence, the latter being a ‘risk marker,’ has already been identified by HM Inspectorate of Probation in The Domestic Violence Review 2004, writes Vallance-Webb. Yet often, she says, the mother may feel convinced that the partner’s violence is directed at her alone and we should be mindful that domestic abuse can affect her awareness of a situation and distort her perception of reality. She may think the violence has ceased or that the abuser is remorseful. The effects on someone trapped in an abusive relationship may even extend to ‘traumatic binding’ when the victim becomes protective of the abuser, even justifying the abuse by reference to her own guilt. Here Vallance-Webb refers to J. Herring’s paper, ‘Familial Homicide, Failure to Protect and Domestic Violence: Who’s the Victim?’ [2007] Criminal Law Review 923.

A case reported in The Guardian (Father sentenced to 10 years over baby son’s death, 2 June, 2018) is not untypical. A 3-month baby dies after allegedly being shaken and immersed in water, the post mortem showing previous fractures to his ribs and shoulder. The father was convicted of manslaughter. The mother was convicted of causing or allowing the death and sentenced to 4 years.  The mother admitted her partner frightened her and said he had previously broken her jaw, though she denied he was violent towards the baby. The judge told the mother, ‘I accept that you were manipulated and controlled by [him], that you had been on the receiving end of his violence. But you ignored your mother’s pleas to leave him, and you put your obsession with him ahead of your duty to protect your son.’

Upsetting though such child deaths are to read about, the fairness of the operation of the s 5 offence ‘causing or allowing the death of a child’ should surely be re-considered.

But two teeny cheers for the DVCVA’s little nod to the otherwise ignored district judges in adding two more relationships to those in the FLA part IV ‘associated persons’ category.  Same sex partners, or former partners, and those who have had ‘a significant relationship’ but who may not have lived together, are now covered by the Act.  What constitutes ‘significant’ is helpfully subjective. As long as one of the parties sees the relationship as ‘significant,’ however fleeting it may appear to others, the FLA will apply.      

 2013 The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was implemented, with severe cuts to criminal and civil legal aid. Legal aid for non-molestation injunction proceedings and for private law family cases was severely restricted. The legal advice and assistance scheme ended, cutting the less well-off from even basic initial legal advice on their family problems as well as on such matters as debt, divorce and welfare benefits. Predictably, as family situations deteriorate, local authority public law applications have risen exponentially. Indeed some local authorities find almost three quarters of their budget is taken up by ‘looked-after children.’ Although parents of children subject to care proceedings have automatic non-means, non-merits tested legal aid, few succeed in defeating a care order application, as the court is expected to give more weight to expert evidence from a social worker or paediatrician. It is likely a perfect storm may be brewing in terms of social disruption as these young people reach adulthood, many seriously psychologically damaged – with further implications for the public purse.

A perfect storm brewing?

‘Coercive Control’ became a criminal offence in 2015 in section 76 of the Serious Crime Act. This kind of behaviour forms the bulk of statements in support of civil court non-molestation order applications. This is another well-intended but poorly conceived criminal measure , despite the publicity, under which few prosecutions have been brought. For an indication as to why not, readers could google ‘Coercive control, the secret barrister.’ The suggestion is that some examples are already covered by existing laws, while the rest could be described as behaviours falling under a ‘law against bad relationships.’   There is also a pointer in the same post as to why laws devised to ‘send a message’ are rarely good laws! 

The Domestic Violence and Abuse Bill is expected to have its third reading in Spring 2020 and be enacted that year.  Its overall ambitions are set out in a House of Commons Briefing Paper no 6337, June 2017. Tellingly – and depressingly for victims – it asserts:

‘There will be a lower level of offending through an improved criminal justice response and a greater focus on changing the behaviour of perpetrators through a combination of disruption and support.’ 

So the law intends to continue to rely on punitive measures, focusing on perpetrators – even though victims rarely seek retribution. Ideally victims want the abuse to stop but the law cannot easily change a human being. If they decide they must separate their life from that of the abuser, for their own and their children’s wellbeing, they must be allowed the safest, surest route to do so. Such a route was provided by the FLA part IV legislation pre-July 2007.

Significantly, the NSPCC and Action for Children complain that the proposed Act contains no legal measures to protect children. It can’t. It’s a criminal law. It’s about prosecution.

A new post of Domestic Abuse Commissioner has been set up and an appointment made. It would be something that district judges and family law solicitors who actually work in this field – and not least vulnerable people most in need of the law’s protection – could celebrate if Nicole Jacobs, whose background is in working with women’s domestic abuse groups in America, would acquaint herself with the FLA part IV legislation and consult with practitioners as to how it works and how it could work so much better restored to its former strength.

The bill contains a new, fuller definition of domestic abuse, aiming for no loophole in the scope of a criminal charge. Domestic Violence Protection Orders, already in existence under sections 34-41 of the Crime and Security Act (CASA) 2010, are to be renamed Domestic Abuse Protection Orders. These are orders whereby the police can apply to magistrates for an order to exclude a perceived perpetrator from a victim’s home for up to 28 days, to allow her ‘breathing space to consider (her) options with the help of a support agency. ’

Although advisers, other third parties and victims themselves will be able to apply to magistrates for the 28 day exclusion orders, it is likely they may encounter similar difficulties in their operation. Certainly there may be frustration if police do not respond immediately to more reports of breach as more orders are applied for, with a swift arrest and return to court for sentence.  While such orders may offer short term help in emergencies, they seem a pale substitute for non-molestation orders, whose list of ‘associated persons’ they echo.

The new Act will prevent alleged perpetrators from cross-examining victims directly in family courts. This is likely be done by some ‘legally qualified person’ appointed by the court on the day.

If legal aid – with a sensible merits and means test – were to be restored to both parties, as fairness, the interests of justice and efficiency demand, the problem would be solved.