Doemstic Violence (1).docx

DOMESTIC VIOLENCE AND ABUSE INTRODUCTION  

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No agreement as to the terminology that should be used to describe the violence that takes place between adults in a close relationship. At one time it was common to talk about it as domestic violence/battered wives but now violence between people in close domestic relationship is not restricted to wives alone .Kaganas claims that women are often violent to men Domestic violence is a term that can be criticised as it shows a purely VIOLENT BEHAVIOUR It is common to refer to both domestic violence and abuse The range of behaviour encompassed within the term “ violence” and the range of relationship which ought to be classified as “domestic” have generally widened The government introduced a new definition of domestic violence and abuse in 2013 to be “used by Government departments to inform policy developments and…the police,the Crown Prosecution Service(CPS) and the UK Border Agency to inform the identification of domestic violence cases This is not a legal definition It is defined as An incident or pattern of incidents of controlling,coercive or threatening behaviour,violence or abuse between those ages 16 or over who are or have been intimate partners or family members regardless of gender and sexuality This can encompass but is not limited to the following types of abuse 1. Psychological 2. Physical 3. Sexual 4. Financial 5. Emotional “Controlling behaviour” : a range of acts designed to make a person subordinate and/or dependant by isolating them from sources of support,exploiting their resources and capacities for personal gain,depriving them of the means needed for independence,resistance and escape and regulating their everyday conduct “Coercive behaviour” is an act or a pattern of acts of assault,threats,humiliation and intimidation or other abuse that is used to harm,punish or frighten their victim This definition recognises that domestic violence is best understood as apattern of behaviour ,rather than a single incident The heart of domestic violence is about controlling the other person and this can be done through many ways and not just physical attacks. According to Evan Stark : Most abused women have been subjected to a pattern of sexual mastery that includes tactics to isolate,degrade,exploit,control them as well as to frighten them or hurt them physically.The tactics include forms of constraint and the monitoring and/or regulation of commonplace activities of daily living In the Legal Aid,Sentencing and Punishment of Offenders Act 2012 the following definition of domestic violence is used Domestic violence means any incident or patterns of incidents,or controlling,coercive or threatening behaviour ,violence or abuse(whether

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psychological,physical,sexual,financial,emotional) between individuals who are associated with each other 1. This definition is not restricted to physical attacks but WIDELY DRAFTED to include financial and emotional abuse 2. It uses the terminology “associated person” 3. The wide definition isn’t supported universally 4. Helen Reece 2009 expressed grave concern that employing a definition of domestic violence that includes emotional abuse is a “remarkable downplaying of the physical” The Supreme Court has recently considered the definition of DOMESTIC VIOLENCE Yemshaw v Hounslow London BC Facts : In this case, Ms Yemshaw was married and had two children,aged six and eight months.She was fearful of her husband.Although she accepted that he had never physically assauled her,she claimed that he had inflicted emotional,psychological and financial abuse upon her.She applied to Hounslow Housing Authority for accommodation after being forced out from the matrimonial home by the alleged abuse.The Housing Authority refused to rehouse her. Pursuant to the Housing Act 1996 it only had to rehouse someone who had a house if it was not reasonable for them to live there. The statute stated that it would not be reasonable if the owner was a victim of domestic violence. As she had not suffered violent touching they determined that there was no domestic violence . She sought judicial review Lady Hale : with which Lord Hope and Lord Walker agreed that While physical force was an example of violence,it was not the only form of violence She discussed a wide range of documents from national and international bodies showing that they did not restrict the concept of domestic violence to physical attacks (para 20 and 21) She referred to reports from the United Nations Committee,the General Assembly of United Nations,the House of Commons Home Affairs Committee,the Law Commission.etc Lady Hale in para 38 adopted a definition from a practice direction : domestic violence “includes physical violence,threatening or intimidating behaviour and other forms of abuse which directly or indirectly may give rise to a risk of violence” Lady Hale set out what she regarded as the key question of what authority needed to address Was this,in reality simply a case of marriage breakdown in which appellant was not genuinely in fear of her husband ; or was it a classic case of domestic abuse , in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials ,through the denigration of her personality,such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider. Some commentators such as Knight 2012 has complained that this approach does ‘linguistic violence” to the definition of domestic violence Other commentators such as Knight has welcomed the willingness of courts to acknowledge that domestic violence is about “coercive control” of the victim and this control can be exercised in various ways Michael Johnson 2010 states that we can separate three forms of domestic violence

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1. Intimate violence (IT) : When one intimate partner uses a variety of tactics to exert power and control over another 2. Situational couple violence (SCV) : When an argument between partners gets “ugly” and escalates out of control 3. Violent resistance (VR) : When a victim usually a female ,uses violence to retaliate against being abused Michelle Madden Dempsey states that distinction has to be drawn between domestic violence in the strong sense and domestic violence in the weak sense o Domestic violence in the strong sense requires the intersection of three elements ie :illegitimate violence ,domesticity and structural inequality o Domestic violence in the weak sense requires the intersection of two elements ie domesticity and structural inequality o The distinction between this two is helpful particularly where there are limited resources in the hands of prosecutors as they should FOCUS on prosecuting domestic violence in the strong sense Ward J in Re P (Children) stated that : “Domestic violence ,of course, is a term that covers a multitude of sins. Some of it is hideous, some of it is less serious

DOMESTIC VIOLENCE AND GENDER      

The vast majority of violence takes place against women This is not to say that men are never subjected to domestiv violence But the violence by women against men are quite different from violence by men against women because women’s violence is often in self defence or an isolated incident Where men are victims ,the injuries tend to be less serious Hester found out that in many cases of arrest the women were in fact using force in self defence Hester said that male domestic violence suspects were able to influence decisions made by officers at the scene of the crime ,minimising their own role as primary aggressors and making women who were victims appear as perpetrators

SCALE OF DOEMSTIC VIOLENCE 

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The Home Office state that Each year over 1 million women suffer domestic abuse, over 300000 women are sexually assaulted, 60000women raped and thousands more stalked.These crimes are often hidden away behind closed doors,with the victim suffering in silence Fewer than 1 in 4 people who suffer abuse at the hands of their partner and only around 1 in 10 women who experience serious sexual assault – report it to the police Giddens has written that “The home is,in fact the most dangerous place in modern society. In statistical terms, a person of any age or of either sex is far more likely to be subject to physical attack in the home than on the street at night” The Guardian 2014 : Domestic violence is the largest cause of morbidity (illness or injury) worldwide in women aged 19-44 greater than war,cancer or motor vehicle accidents (DV causes illness or injury)

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31% of women and 18% of men had experienced domestic abuse since the age of 16 .These figures were equivalent to an estimated 5.0 million female victims of domestic abuse and 2.9 million male victims of domestic abuse. (Dar -2013) Some 7 % of women and 5 % of men were estimated to have experienced domestic abuse in 2011-2012 = equivalent to 1.2 million female and 800000 male victims An incident of killing,stabbing or beating takes place on average every six minutes in a home in Britain (Stanko 2013) In 2012-2013,77 women were killed by their partners or ex-partners (HMIC 2014) 18% of all violent crimes reported are related to domestic abuse (Home Office 2011b) The police receives an emergency call about domestic violence every 30 seconds ( HMIC 2014) There are significant financial costs which fall on the state as a result of domestic violence Domestic violence is estimated to have cost England 5.5 billion pounds in 2011 (Trust for London 2011) Of women who had been the subject of domestic violence and left home , 76% of them suffered continued violence (Humphreys and Thiara 2002) 30% of cases of domestic violence started during victim’s pregnancy (Home Office 2003a) On average women are attacked 35 times before seeking assistance (Falconer 2004) In the UK 1 in 4 young people,aged 10 to 24 reported that they experienced domestic violence and abuse during their childhood (HMIC 2014) Non reporting of domestic violence is a particular problem : an average victim will undergo 35 or more assaults ,over a seven year period ,before approaching the police or another domestic violence agency for help (T Hall and S Wright (2003)) The impact on the domestic violence on the mother may itself harm the child (Radford and Hester 2006) ie including psychological disturbance and a feeling that they are to be blamed for the violence (Barnardo’s (2004)) A study of children who had suffered abuse showed that 39 % of them had come from families in which there was domestic violence (Farmer and Pollock 1998) Marianne Hester found that children were present in 55% of cases of domestic violence

CAUSES OF DOMESTIC VIOLENCE 1. Psychopathological explanations  Problem of domestic violence as flowing form the psychological make up of the abuser  Domestic violence is caused by the abuser having an underdeveloped personality including an inability to control his anger or deal with conflict  Some argue that male violence is natural,pointing to the fact that male animals are more violent than female animals  Pathology (mental abnormality) cannot be the only explanation for domestic violence given that abusers are able to control their tempers outside home and when dealing with people at work 2. Theories about the position of women in society  The theories focus on the domination of women by men ,throughout society  One argument is that the attitude of law and state authorities perpetuates abuse

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Society,through diverse ways that men are permitted to exercise power over women ,make domestic abuse appear acceptable to the abuser  Violence often occurs when women don’t fulfil their traditional roles and men use violence to reassert the authority  According to Hester and Westmarland 2005, lack of effective response by the law means that women are unable to find suitable ways to escape from abuse 3. The family relationship  Some argue that failure of family relationship leads to domestic violence  Poor communication skills or volatile partnership are to be balmed as the causes of the violence ( Borkowski,Murch and Walker 1983)  However ,this fails to explain why the man rather than the women who is usually violent To understand fully the law on domestic violence it is necessary to appreciate the aspect of criminal law,tort law and housing law as well as legislation specifically designed to deal with domestic violence Traditionally a distinction has been drawn between civil proceedings and criminal proceedings.In civil proceedings it is the victim herself who is bringing the proceedings to pursue application against the abuser meanwhile for criminal law proceedings are brought on behalf of the state CIVIL LAW REMEDIES IN CASES OF DOMESTIC VIOLENCE 

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Previously ,the law relating to the grant or orders intended to order the respondent from attacking or pestering the victim or to exclude him from the family home had become a confused and complicated jumble of jurisdiction Part IV of the Family Law Act 1996 was intended to simplify and improve the protection given by the civil courts ,largely by bringing the jurisdiction together .

THE FAMILY LAW ACT 1996 THE SCHEME OF PART IV 

Provides for two categories of orders to be made (The victim of domestic violence can seek a court order that the abuser (the respondent) first does not molest her and secondly that he leave and stay away from the family home) Both are designed to deter the respondent from abusing the applicant in the future. If he breaches this orders,he could face imprisonment  Non-molestation orders Section 42  Occupation orders Section 33-41

NON MOLESTATION ORDERS   

The non molestation order is the more likely and common order to be granted According to the Court Statistics (quarterly) :over 8 as many non-molestation orders as occupation orders were granted by the county courts in 2013 Section 42(1) provides that a non molestation order ....means an order containing either or both of the following provisions (a) Prohibiting ..the respondent from molesting another person who is associated with the respondent (b) Prohibiting the respondent from molesting a relevant child

WHAT IS MOLESTATION

(a) In response to the Law Commission’s proposal (Law Com No 207 at para 3..1) : any attempt at the definition of molestation might reduce the level of protection afforded . Molestation is deliberately not defined in the Act (b) The meaning of molestation is left to case law (c) His Honour Judge Fricker “Molestation and Harassment after Patel v Patel” 1988 at 399 said that molestation had been regarded as meaning “delibrate conduct which substantially interferes with the applicant or child,whether by violence,intimidation,harassment,pestering or intervention sufficiently serious to warrant intervention by a court” (d) Davis v Johnson Violence is a form of molestation but molestation may take place without the threat or use of violence and still be serious and inimical to mental and physical health. Where, as here, violence was used, it was not disputed that an injunction restraining it could be granted. Where other forms of molestation occur, it is probable that if it is of such a character that the court would be disposed to grant an injunction in respect of it, there would be a right of action for nuisance. (e) Vaughan v Vaughan Constant pestering can amount to breach of a non-molestation order. STEPHENSON L.J. I agree with Davies L.J.'s judgment and with the modifications in the order which he proposes. (1) “Molest” is a wide, plain word which I should be reluctant to define or paraphrase. If I had to find one synonym for it, I should select “pester.” Whether communication amounts to molestation is a question of fact and degree. I have no doubt that what this man did in April and May 1973 to this woman, with the knowledge of his past conduct which both of them had, was to molest her. SIR SEYMOUR KARMINSKI :I agree, and only desire to add this. Whatever definition of “molestation” we apply to a case of this kind, I have no doubt at all that the husband molested the wife on a large number of occasions. Looking at the Shorter Oxford English Dictionary definition, which includes “to cause trouble to,” “to vex,” “annoy,” “put to inconvenience,” my impression of the husband's behaviour here is that he erred in all those respects in his behaviour towards his wife. (f) Horner v Horner (Ormrod LJ) I have no doubt that the word "molesting" in section 1 (1) (a) of the Act of 1976 does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court. (g) C v C (Non Molestation Order: Jurisdiction) Sir Stephen Brown P states that “it implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party ,so as to justify the intervention of the court  This clearly overlaps with,though it is wider than the concept of harassment under the Protection of Harassment Act 1997 since there is no requirement to prove a “course of conduct” meaning conduct on at least two occasions  The 1997 provision may be broader in scope since it provides that harassment includes causing alarm or distress ,whereas the molestation must pass the

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“seriousness” hurdle (high degree of harassment) and thus open to the court to consider that the conduct complaint of is not sufficiently serious to warrant the intervention of courts In this case, Sir Stephen Brown P refused an order to prevent a former wife passing details about her ex husband and their marriage to a tabloid newspaper. The COA could not obtain a non-molestation order to prevent his former wife making revelations in the newspaper about their relationship. It was explained that molestation does not include a breach of privacy but “some quite deliberate conduct which is aimed at a high degree of harassment of the other party” . Here it was felt that the husband was seeking protection of his reputation rather than protection from molestation This case is contrasted with Johnson v Walton where a man sent a semi naked photograph of his former girlfriend to the press.It was held that this could constitute molestation A distinction can be drawn at both the cases where the press involvement in Johnson was directly aimed at humiliating the woman whilst in C v C the wife’s conduct was intended to explain her version of events rather than disgracing her husband

WHO MAY APPLY FOR THE ORDER  

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Under the former law problems arose because only spouses or cohabitants could seek an injuction or order The Law Commission (Report No 207 para3.9) : wanted to extend the range of applicants for non molestation orders but were against providing remedy to anyone ,regardless of their relationship with the defendant If too many people could seek non-molestation injunctions-this could lead to excessive litigation or floodgates The law commission reasoned that a DOMESTIC or FAMILY relationship justifies special remedies and procedures because of the proximity of the parties and the likelihood that the relationship will continue The Law Commission considered that in para 3.17 and 3.19 considered that extending equal protection to neighbours, tenants and victims of sexual harassment would be going to far Under the Act, only an associated person can apply for non-molestation order . The Law Commission had proposed basing the eligibility upon those who can apply for the order on the person’s association with another and gave a suggestion on the associations. The list of associations were widened by the Domestic Violence ,Crime and Victims Act 2004

Associated persons – Who are associated person (a) Associated persons are defined under s62(3) of the Family Law Act 1996 (b) Wall J in G v F (Non -Molestation Order) suggested that if it is unclear whether the relationship between two people fall within one of these definitions, it should be treated as if it does. He thought that unless it was clear that couple’s were not associated ,it should be presumed that they were Section 62(3)

(a) They are or have been married to each other (aa) They are or have been civil partners of each other (b) They are cohabitants or former cohabitant Cohabitants is defined by s62(1)(a) Family Law Act 1996 ,as amended by Sch 9 para 13 to the Civil Partnership Act 2004 as meaning “two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners G v F (Non -Molestation Order :Jurisdiction) The respondent stayed with applicant a few nights a week in her home and she visited him for two night a week at his home . Wall J held that this should be regarded as cohabitation .Particular weight was placed on the fact that they had a sexual relationship ,had lived in the same household and had a joint account Clibbery v Allan : where the couple were not found to be cohabitating (c) They live or have lived in the same household ,otherwise than merely by reason of one of them being the other’s employee ,tenant, lodger or boarder  This category covers many people living together and would cover for example ,students living together in a student house ,or two elderly sharing accommodation companionably .  A sexual relationship is not required  The fact that one is the other’s employee,lodger,tenant or boarder doesn’t mean that the couple are necessarily excluded from the act ;  the question is whether they live together merely because of that relationship ie landlord tenant relationship or employer employee relationship  So if a landlord and tenant are lovers they may be associated  Under this heading a child may be associated with a parent and therefore entitled to apply for a non molestation order against a parent Re Alwyn (Non Molestation Proceedings By A Child) X, who was 12 years old, alleged that on numerous occasions he had been the victim of violence and verbal threats by M at the family home, none of which had been witnessed by F. X commenced proceedings for non-molestation and occupation orders against M. After the proceedings were issued, X's solicitor informed the court that he had met X and deemed him competent to take the proceedings, notwithstanding that he had special educational needs. There were no details of the solicitor's assessment of X's understanding of the proceedings, nor any other information relevant to the exercise of the court's discretion as to whether to grant X leave to commence the proceedings. Held : (1) The Family Homes and Domestic Violence (Northern Ireland) Order 1998 required that there be evidence as to X's understanding. Absent such evidence or any information as to the other matters which were relevant to the exercise of the court's discretion to grant leave to commence proceedings, it would only be in the most exceptional circumstances that such leave would be granted.There was no such evidence in the instant case

(3) F could have brought non-molestation proceedings to protect X notwithstanding that he was not himself being molested. Article 20(2)(a) and art.20(5) of the 1998 Order permitted a person associated with the respondent to seek an non-molestation order to secure the health, safety and well-being of any relevant child. F was therefore entitled to bring non-molestation proceedings in his own name against M for the protection of X.

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(d) They are relatives. The term relatives is extensively defined in s63(1) (a) The father,mother stepfather, stepmother, son, daughter ,stepson ,stepdaughter ,grandmother,grandfather,grandson or granddaughter of that person or of that person’s spouse or former spouse (b) The brother, sister, uncle , aunt , niece , nephew , or cousin (whether of full blood or of half blood or by affinity)of that person or of that person’s spouse or former spouse (e) There have agreed to marry one another (whether or not the agreement has been terminated There are only three ways one can prove that there is an agreement to marry (s44 FLA 1996) There is an evidence in writing of the agreement to marry There was the gift of an engagement ring by one party to the agreement to the other in contemplation of the marriage There was a ceremony entered into by the parties in the presence of one or more other persons assembled for the purposes if witnessing the ceremony There has been some debate over whether an engagement party would suffice to be considered a ceremony. It seems unlikely that a court would accept a party as a ceremony although a religious service on engagement would be sufficient Pursuant to s44(4) FLA 1996 : Formerly engaged couple can only apply for a non molestation order if the agreement to marry was terminated less than three years previously.

(eza) They have entered into a civil partnership agreement (as defined by Section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated (ea) They have or have had an intimate personal relationship with each other which is or was of significant duration. This category was added by the Domestic Violence ,Crime and Victims Act 2004 Courts attempt to define an “intimate personal relationship” and “significant duration” would be looked forward to District Judge Robert Hill has suggested that it is unclear whether the relationship of “several months” will be of “significant duration” (Hill 2005) (f) In relation to any child ,they are both persons falling within subsection 4 (g) They are parties to the same family proceedings Section 62(4) A person falls within this subsection in relation to a child if (a) He is a parent of the child (b) He has or has had parental responsibility for the child

Under s43 a child under the age of 16 may seek an order with leave of the court ,which may only be granted if the court is satisfied that the child has sufficient understanding to make the application

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The difficulty arises whether there is a cohabitation in existence G v G (Non-molestation Order :Jurisdiction) The applicant had maintained to the Department of Social Security that she and the respondent did not live together but then sought and order from the magistrates asserting then that they spent about five nights a week together. On appeal against the magistrates refusal to make an order, the court held that the three “signpost” which may establish a cohabiting relationship were present and the court was clear that the 1996 Act should be given a purposive meaning in order to bring someone within rather than outside ,its protection unless clearly impossible

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Cheshi v Bashier A man had been engaged in a land dispute with his relatives in Pakistan and sought nonmolestation order against his brothers and nephews The trial judge discharged the exparte orders that had been made , and considered that the dispute was better dealt with as a civil matter and the family relationship between the parties was incidental. He based his decision on the fact that the family relationship was incidental to the quarrel, which was in essence a civil dispute; Held : that the judge was wrong on the first ground as the dispute had plainly been intensified by the family relationship and the protection of the Act clearly extended to all applicants who were associated with the defendant by virtue of a family relationship. The COA affirmed that the Family Law Act 1996 is intended to extend protection to a wide class of family relationships and that suitable cases should clearly be within this ambit

WHEN MAY AN ORDER BE MADE   

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The court may make an order on a freestanding application or where the application is made in other family proceedings (Section 42(2)(a)) Family proceedings are defined in s63(1),(2) and by virtue of Section 42(3) It may also make an order of its own motion in any family proceedings to which respondent is a party,if it considers that the order should be made for the benefit of any other party or of any relevant child (Section 42(2)(b)) S62(2) defines a relevant child When the court is considering whether to make an occupation order,it must also consider whether to make a non-molestation order of its own motion (Section 42(2A) and (4B) inserted by Sch 10 para 36 to the Domestic Violence,Crime and Victims Act 2004 An applicant should be able to obtain an order without having to take other proceedings but it is equally useful to enable an application to be attached to other proceedings already underway and to give the court a reserve a power to make an order even where no application has been made

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Such a power may be helpful where a party is reluctant to be seen to be seeking an order for fear of provoking the respondent

CRITERIA FOR THE GRANT OF AN ORDER 

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In deciding whether to make the order and if so in what manner Pursuant to Section 42(5) : …the court shall have regard to all the circumstances,including the need to secure the health,safety and wellbeing (a) Of the applicant and (b) Of any relevant child This is a rather wide test enabling the court to take into account any circumstances it believes as relevant Pursuant to the Law Commission Report 192 the aim of the test is to focus on the need of protection in the future rather than to proof the fact of threat of violence in the past Health is defined to include both physical and mental health If the court fears that the order would simply be used as a weapon in the party’s disagreements ,rather than to provide protection,courts may decline in making the order

TERMS OF A NON MOLESTATION ORDER  

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Pursuant to s42(6) a non molestation order may refer to molestation in general or to particular acts of molestation or to both Certain unreported decisions reveal that s42(6) can prohibit a person from entering a specific area around a person’s house.This could be seen as obtaining an occupation order through the back door A non-molestation order could not be used to remove someone from a house The court is given the flexibility to outline prohibited conducts or to leave prohibition in general terms (Law Com No 207 para 3.2) For example : a court could prohibit the respondent from telephoning the victim or from loitering outside her place of work or coming with a certain distance of her home The order may be for a fixed perios or until further order The COA in Re B-J has held that the purpose of a non molestation order is not (as was the understanding under former law) to simply give a breathing space to the parties for the tension to die down between them .There are cases where it is appropriate for the order to last for a much longer period.Courts are not obliged to consider whether such case is “exceptional” or “unusual” before making an order of indefinite duration Pursuant to Section 49(1) and (2) the order may be varied or discharged on application by respondent or applicant and where it was made on the court’s own motion ,may be varied and discharged by the court,even though no application has been made

CAN THE ORDER BE MADE AGAINST SOMEONE WHO IS UNABLE TO CONTROL HIS OR HER ACTIONS  

Prior to the Family Law Act 1996 case law suggested that only deliberate acts would constitute molestation This is no longer correct

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In Banks v Banks :it was seen as inappropriate to make a non-molestation injunction against a woman who was suffering from a manic depressive disorder and therefore unbale to control her behaviour The reasoning was that if it would be wrong if she were guilty of contempt of court through conduct beyond her control The similar argument could be used by an alcoholic and that law should focus on protection of the victim rather than fairness to the perpetrator of violence In G v G (Occupation Order :Conduct) that an occupation order can be made after an unintentional conduct In light of that decision a non-molestation order should be able to be made following an unintentional conduct. However, it should be borne in mind that a person can only be guilty of contempt if he or she has sufficient mental capacity to understand that a court order has been made forbidding certain conduct, under threat of punishment (P v P Contempt of Court-Mental Capacity)

OCCUPATION ORDER    

The second type of order can be made under the Family Law Act 1996 is more complicated An occupation order may declare or regulate the right to occupy a family home Detailed terms of the order will vary according to the eligibility of the applicant Declaratory order may “declare,confer or extend occupation rights” while regulatory orders “just control the exercise of existing right” (Law Com No 207 para 4.1)

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Application may be free standing or made in other family proceedings but the court has no power to make an order of its own motion Section 39(2) The range of permitted applicants is narrower and limited, compared to non-molestation order because the Law Commission were concerned with the interference of the enjoyment of property right -either requiring a respondent to leave his own home or to let the applicant into it where the applicant has no such property rights herself (Law Commission No 207 para 4.7) The Law Commission also considered that ,for non-entitled applicant ,the purpose of seeking an order is to obtain short term protection until they can find an alternative home Whereas the applicants might be seeking medium or long term regulation of the property The Act doesn’t employ the concept of associated person here (as used in relation to nonmolestation order) but instead distinguishes it between two categories of applicants(those entitled and non-entitled)

1. ENTITLED APPLICANTS  Pursuant to s33(1)(a) : an entitled applicant is a person who i. Is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation or ii. Has home rights(granted by s30(2)) in relation to a dwelling house

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Pursuant to s33(1)(b) ; such an applicant may seek an order where the dwelling house is or at any time has been the home of the applicant and the person with whom he is associated or was intended by them to be their home

2. Types of occupation orders in favour of entitled applicants  DECLARATORY ORDER i. Declare that applicant is entitled to occupy the home by virtue or property law or home rights Section 33(4) ii. May provide that the applicant’s home rights are to continue beyond the death of the other spouse or civil partner or the termination of marriage or civil partnership Section 33(5) (such an order cannot be made after the death of either of the former parties (Section 33(9)(a)) iii. Such declaratory orders have limited utility unless applicant is contesting a property claim by a third party with whom he or she is associated ,for instance, her brother in law who is a joint owner of the family home. c/f Kalsi v Kalsi Wife was not entitled to declaration of her rights of occupation in the matrimonial home as against her husband’s three brothers who were legal owners with her husband of the property. The matrimonial home in question was in the name of H and his two brothers. In 1989, W left with the children, issued a petition and applied for, and was granted, under the Matrimonial Homes Act 1983 a declaration that she had rights of occupation in the home and ouster orders against H and his two brothers. One brother applied to intervene and appealed. W had mistakenly equated the relief under the Matrimonial Homes Act 1983, which was restricted to parties to a marriage, and the relief they were reasonably seeking against the brothers as third parties purporting to exercise a proprietary right in the matrimonial home. The proper course for W was to enforce her rights under the express trust or breach of contractual licence against the three brothers and then to consolidate that with the action against H. 

REGULATORY ORDER (what are the orders) Section 33(3) (a) Enforce the applicant’s entitlement to remain in occupation as against the other person (the respondent) (b) Require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house (c) Regulate the occupation of the dwelling house by either or both parties (d) If the respondent is entitled (under Section 33(1)(a)) ,prohibit, suspend or restrict the exercise by him of his rights to occupy the dwelling house (e) If the respondent has home rights in relation to the dwelling house and the applicant is the other spouse or civil partner,restrict or terminate those rights (f) Require the respondent to leave the dwelling house or part of the dwelling house or

(g) Exclude the respondent from a defined area in which the dwelling house is included. i. This provisions are used flexibly to meet the circumstances of a particular case ii. An order could prevent the respondent from changing the locks of the home to keep the applicant out,or require him to let her back in ,require the other party to quit the home at certain times or prohibit the respondent from entering within certain distance of the home Burris v Azadani 250 yards from the home

CRITERIA FOR AN ORDER IN FAVOUR OF ENTITLED APPLICANT 

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No test is laid down for the court to apply when deciding whether to make a simple declaratory order since this will depend on whether the applicant has the property or home rights contended for When considering whether to extend the home rights beyond the death of the other spouse or civil partner or after the termination of the marriage or civil partnership ,it may do so whenever it considers that ,in all circumstances ,it is just and reasonable (Section 33(8))

BALANCE OF HARM TEST 

Whether or not to make a regulatory order, Law Commission were concerned to provide a test which would meet the varied circumstances which might arise in individual cases  Degree of danger being faced by the applicant, the ability to find alternative accommodation at a short notice and any need for a long term solution to the problem are the varied circumstances  They proposed a “ balance of harm” test :enable the court to strike a balance between being fair to the respondent on one hand and ensuring the protection of the victims on the other and which would elevate the court’s power to make an order into a duty to do so when the effects upon the victim are sufficiently grave.  Section 33(7) : If it appears to the court that the applicant or a relevant child is likely to suffer significant harm attributable to the conduct of the defendant if an order is not made,the court shall make the order unless it appears that (a) the respondent or the relevant child is likely to suffer greater harm in consequence of the order being made (b) the harm likely to be suffered by the respondent or the child in that event is as great or greater than the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or the child if the order is not made  Law Commission formulation of presumption did not require a causal connection between harm and respondent’s conduct.This was inserted by the Parliament  Significant harm is a term taken from the Children Act 1989  Harm is defined in s63(3) of the Family Law Act 1996 to mean : in relation to a person aged 18 or over, ill treatment or the impairment of health and in relation to a child, ill treatment or the impairment of health or development  B v B (Occupation Order)

A husband, H, appealed against a decision granting an occupation order in favour of his wife, W, and a child of the marriage, YB, aged one, to the exclusion of H and his son from a previous relationship, MB, aged six. Following their marriage, H and W acquired the tenancy of a council house where they lived with MB and YB. However, after suffering violence at the hands of H, W left the property with YB, and the two of them were rehoused by the local authority in temporary bed and breakfast accommodation. W was then granted a non molestation order and an occupation order against H, who resisted(appealed) the latter on the ground that it would cause significant harm to MB in terms of the Family Law Act 1996 s.33(7)

Held (allowing the appeal): (1) The judge erred in his analysis of the “housing needs and housing resources of each of the parties and any relevant child” under section 33(6) of the Family Law Act 1996;  the parties' respective housing needs were equal in that each needed two bedroom accommodation; their housing resources, using the term to include the duty owed to each by the local authority, were quite different;  although Mrs B's bed and breakfast accommodation was unsatisfactory, there was every prospect that she and YB would be re-housed by the authority in two bedroom accommodation; there was no such prospect for Mr B and MB if an occupation order was made; ( since he had made himself intentionally homeless due to the domestic violence acts and therefore entitled to only temporary accommodation) (2) The judge had failed to take into account the fact that if an occupation order was made, MB would not only have the disruption of leaving home but would also have to leave his school; on the facts of the case, the harm likely to be suffered by MB if an order was made outweighed the likely harm to YB if it was not; *1061 (3) Mr B was guilty of serious domestic violence; were it not for the fact they he was caring for MB, who had particular needs which outweighed those of YB, an occupation order would undoubtedly have been made against him; the Family Law Act 1996 is designed to protect cohabitants from domestic violence and to secure their safe occupation of previously shared property; nothing in the judgment should be read as weakening that objective. G v G (Occupation order) H and W were married with two teenage children. W commenced divorce proceedings, but H and W continued to live in the same house. There was a tense atmosphere, largely attributed to H's conduct and W applied for an occupation order under the Family Act 1996 s.33 . The judge at first instance, having found that the children had suffered harm because of the tension, held however that H's conduct was unintentional so that the ensuing harm was not attributable to him. The s.33 application was therefore dismissed and a direction made for a final hearing of W's application for residence orders and ancillary relief. W appealed. Held, dismissing the appeal, that an occupation order was to be made under s.33(7) if it was found to be likely that either the applicant or a relevant child would suffer significant harm because of the alleged conduct, unless making the order would cause even greater harm. In considering the likelihood of harm, intention was immaterial as the important factor was

the effect of the relevant conduct. Even if an order was not made as a mandatory step under s.33(7), the court still had a discretion under s.33(6) to make an order. The judge below had erred in focusing on H's intentions, but his conclusions would be upheld. There was no violence in the instant case and the direction for a final hearing meant that the outstanding issues between the parties would soon be determined. (Conduct is not equal to intention) (The judge prior to the appeal was wrong to consider that harm suffered by the two sons of the marriage was not attributable to the husband’s conduct because he had no intention to do so )

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THE DISCRETIONARY TEST Where the balance of harm test is not satisfied, it doesn’t mean that an occupation order will not be made. The court must go on to consider whether as a question of discretion it should make an order ,taking into account the factors listed in s33(6) (Thorpe LJ in Chalmers v Johns) Under s 33(6) the court is required to have regard to all circumstances including (a) The housing needs and resources of each of the parties and of any relevant child (b) The financial resources of each of the parties (c) The likely effect of any order ,or of any decision by the court not to exercise its powers under subsection 3,on the health, safety or well being of the parties and of any relevant child and (d) The conduct of the parties in relation to each other and otherwise

Chalmers v Johns A mother and father, M and F, separated after over 20 years of cohabitation, M moving out with the seven year old daughter of the family, A. There had been some violence in the relationship, both parties receiving minor injuries, and M was an acknowledged alcoholic. A had regular staying contact with F. M and F made cross applications for a residence order for A, and M was granted an interim occupation order under the Family Law Act 1996 s.33, on the ground of F's violence. F appealed against the occupation order. Held, allowing the appeal and directing that the application for occupation orders be dealt with at the substantive hearing, that the judge had misdirected herself. The correct approach under s.33 was to ask, first whether A would be likely to suffer significant harm if the order were not made. If yes, then the order had to be made unless F or A would suffer as much or more harm by the order being made. If the answer to the first question were no, the court had a discretion to make the order if it deemed it appropriate in all the circumstances, including factors such as the parties' housing needs and financial resources. The judge had been right to find that the case barely came within the ambit of domestic violence, but that therefore meant that she was not entitled to find that such a draconian order should be made

According to the COA the occupation orders continue to be regarded as draconian measures to be confined to exceptional cases .(used sparingly)

Dolan v Corby It doesn’t follow that only violence constitutes or falls within the ambit of exceptional circumstances. Although the respondent had not subjected the victim to any physical violence, the victim’s psychiatric state was sufficient to justify excluding the respondent from the property. C and D had been joint tenants of a property since 1980. In 2010, C was required to move out after D obtained a non-molestation order against him. D subsequently applied for an occupation order. The recorder found that D suffered from psychiatric problems and had previously been able to secure the tenancy of another property, although that had fallen through. He concluded that C was in a better position to obtain an alternative property without any great harm coming to him and that D was entitled to occupy the property to the exclusion of C In accordance with Chalmers [1999] 1 F.L.R. 392, the recorder should first have considered whether the evidence established that D was likely to suffer significant harm attributable to C's conduct if an order were not made.  

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If the answer to that was "yes" he would have known that under the terms of s.33(7) he had to make an order unless C was likely to suffer significant harm if the order was made and that harm would be as great as or greater than the harm attributable to C's conduct which was likely to be suffered by D if the order was not made. If, however, he answered "no" to the first question he would have known that he had a broad discretion under s.33(6) which he had to exercise having regard to all the circumstances of the case including the matters set out in s.33(6) (see para.21 of judgment). However, the recorder had conflated s.33(6) and (7) rather than considering them separately. It was difficult to see how s.33(7) could ever have been satisfied on the facts given that it required not only that D was likely to suffer significant harm if an order was not made but that she was likely to suffer significant harm attributable to C's conduct. The recorder had found that D's psychiatric problems would be alleviated by being away from C, but any argument that that amounted to a finding that she was likely to suffer significant harm attributable to C's conduct if an order were not made would be tortuous in the extreme (para.26). The recorder's judgment could, however, properly be approached as an exercise of discretion under s.33(6). He plainly had had regard to the factors in s.33(6). Chalmers v Johns and G [2000] 2 F.L.R. 36 stressed that an order requiring a respondent to vacate the family home and overriding his property rights was a grave and draconian order and one which would only be justified in exceptional circumstances, Chalmers and G applied. Exceptional circumstances could take many forms and were not confined to violent behaviour or the threat of violence. D's psychiatric state and vulnerability were capable of making the case exceptional. The recorder had had the benefit of seeing and assessing the parties and how each was likely to deal with the challenge of being without the house. The fact that D had been able to get

another tenancy was relevant but not determinative. That tenancy was no longer available and D would have to obtain another just as C would if he were to be excluded. The recorder's finding that C was more able to deal with that as he was less vulnerable was well within his discretion and sufficiently justified by his judgment read as a whole (paras 27, 29).

Re L (Occupation Order0 F and his wife, the respondent mother (M), were the parents of eight-year old twins (C). Relations between F and M had deteriorated and F had recorded audio and video exchanges between them. The judge found that the children were adversely affected by the heated arguments between the parents and were likely to suffer significant emotional harm attributable to the presence of both parents in the house. He made an occupation order under the Family Law Act 1996 s.33 requiring F to vacate the matrimonial home for three months, and a shared residence order for C to live with M and to spend frequent time with F.

F submitted that the judge was wrong (1) to make the occupation order as there was no proof of violence, it was too draconian a response to the situation in the home, and he should have considered an alternative order; (2) to decide that the children should reside permanently with M.

Held: Appeal dismissed.

(1) The judge had first considered s.33(7) which required him to make the order if there was evidence that any child would suffer significant harm. He had then considered s.33(6) which gave him a broader discretion. (2) There was nothing in s.33(6) that limited the making of the order to cases where there had been violence or reprehensible conduct. The provision was broadly drafted and required the court to weigh up at all the circumstances. (3) The order could be granted if there were exceptional circumstances, which did not just mean violence, Chalmers [1999] 1 F.L.R. 392 and Dolan [2011] EWCA Civ 1664 applied. F's argument had to proceed on the basis that the judge had wrongly exercised his discretion. (4) The preliminary question was whether the judge proceeded on the basis of the correct facts. Many allegations had been made by F and M and it was clear that the situation between them was untenable, and the children were exposed to it. It was not incumbent on the judge to comment on every allegation that was made and he had to make findings that were relevant to the exercise of his discretion. (5) He was entitled to make a decision on the facts as he found them. He considered each of the headings under s.33(6)(a) to 33(6)(d) as required. (6) The judge was an experienced family judge and well able to take the view that he did. He found that C were suffering significant harm, which was the threshold for intervention by a local authority. It was clear that he considered that the conduct of both parents contributed to the situation and that they could not live together without damage being caused to the children. (7) Given the finding that the children would be adversely affected he had to intervene (see paras 17-19, 21-29 of judgment).

(8) The decision that M should be the primary carer was reasonable. M had given up her career and F was required to go abroad frequently during the duration of the order (para.29). (9) It was true that the courts should not intervene in property rights and impose such a draconian order other than in exceptional circumstances. (10)However, the judge had formed a view of the harmful situation in the home. (11)After seeing the parties and listening to the recordings he concluded that there was a risk of significant harm to C, and he made the order for a short period (12)He did not err in the exercise of his discretion. The appeal would be dismissed, but that was not a prejudgment of any future order, and the matter would have to be considered in the circumstances at the relevant time (paras 29-30, 32).

DURATION OF THE ORDERS IN FAVOUR OF ENTITLED APPLICANTS  

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By 33(10) orders may be made for a specified period until the occurrence of a specified event or until further order Under the former law,the orders were generally limited to three months duration with the possibility of renewal but this was felt to be inadequate in many instances to achieve a resolution of the parties’ problems Pursuant to Section 49 : as with molestation orders,either party may apply for a variation or discharge of the order

NON ENTITLED APPLICANTS 

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The Law considered that,where a person had no property rights in a home the possibility of obtaining an occupation order should be limited to cohabitants,former cohabitants and former spouses as this were the classes of people that required the most protection (Law Com No 207 Para 4.8) Pursuant to the Family Law Act where the respondent is entitled under property law to occupy the dwelling house but the applicant is not ,he or she may seek an occupation order as a “non-entitled applicant” The Civil Partnership Act 2004 extends this protection to former civil partners (Civil Partnership Act 2004 Sched 9 para 6) The order must be in respect of a dwelling house which is the home they are living in,or have at any time lived in or intended to live in together (Section 35(1)(c) as amended-former spouses or former civil partners, Section 36 (as amended by the Domestic Violence,Crime and Victims Act 2004 Sch 10 para 34 )- cohabitants and former cohabitants) Also, spouses ,former spouses,civil partners,former civil partners,cohabitants,former cohabitants may seek an order where NEITHER party is entitled to occupy the dwelling house (Section 37(1)-spouses and former spouses Section 37(1A) – civil partners and former civil partners, and Section 38(1)-cohabitants and former cohabitants)

NON ENTITLED APPLICANTS WHERE THE RESPONDENT HAS PROPERTY RIGHTS 

In respect of an application brought by non-entitled applicants where the respondent here has the necessary property rights,three issues have to be considered

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First,what provisions may be included in an order Seondly,what criteria apply to the grant of an order and to the provisions included within it Thirdly,how long may an order last On the last two,the Act distinguishes between former spouses and former civil partners on one hand and current or former cohabitants on the other

WHAT PROVISIONS MAY BE INCLUDED IN THE ORDER Declaratory provisions and Regulatory provisions (for former spouses,former civil partners and current or former cohabitants)

If the applicant is currently in occupation in the dwelling house an order must contain the following provisions Section 35(3) -as amended -Former spouses and former civil partners Section 36(3)-As amended- cohabitants and former cohabitants (a) Giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order and (b) Prohibiting the respondent from evicting or excluding the applicant during that period Where the applicant is not in occupation,the order must include the following provision SECTION 35(4) -AS AMENDED -Former spouse and former civil partners SECTION 36(4)-COHABITANTS AND FORMER COHABITANTS (a) Giving the applicant the right to enter into and occupy the dwelling house for the period specified in the order and (b) Requiring the respondent to permit the exercise of that right

Pursuant to the Law Com No 207 para 4.3 : The provisions were termed by the Law Commission as “occupation rights orders” granting a right to occupy the home to applicants who do not already possess such a right .

Regulatory provisions : a court may also include provisions in the order to (a) Regulate the occupation of the dwelling house by either or both of the parties (b) Prohibit,suspend,or restrict the exercise by the respondent of his right to occupy the dwelling house (c) Require the respondent to leave the dwelling house or part of the dwelling house or (d) Exclude the respondent from a defined area in which the dwelling house is included Section 35(5) – FORMER SPOUSES AND FORMER CIVIL PARTNERS SECTION 36(5)-COHABITANTS AND FORMER COHABITANTS

CRITERIA FOR AN ORDER Former spouses and former civil partners In respect towards the granting of the declaratory provisions order (whether to grant it or not),pursuant to s35(6) the court must have regard to all the circumstances including (a) The housing needs and housing resources of each of the parties and of any relevant child (b) The financial resources of each of the parties (c) The likely effect of any order, or of any decision by the court not to (grant an order),on health , safety or well being of the parties and of any relevant child (d) The conduct of the parties in relation to each other and otherwise (e) The length of time that has elapsed since the parties ceased to live together. (f) The length of time that has elapsed since the marriage or civil partnership was dissolved or annulled and (g) The existence of any pending proceeding between them (relating to financial relief or property) The first four of these factors are the same as that which apply to entitled applicants The last three of the factors focus upon the QUALIFICATION of the applicant for the for an order Pursuant to Law Commission No 207 : where an applicant is not on an equal footing in property rights terms with the respondent ,she needs to show some justification of obtaining a declaratory order giving her the rights which she would not otherwise have In determining which regulatory provisions might be included in an order,the court is directed to consider the factors in paragraphs a-e which may be seen as practical issues and then apply the same balance of harm test as applicable to entitled applicants

Cohabitants and former cohabitants 

Some of the factors relevant to former spouses or civil partners such as the length of time the marriage has elapsed since their marriage or partnership ended,cannot be applicable to cohabitants  The length and nature of cohabitating relationship can vary and it would be highly relevant to the question whether it would be just to make an order against a respondent  Law Commission recommended that courts consider certain factors pertaining to cohabitants relationship when deciding whether to make a declaratory order  Parliament choose to emphasis on the distinction between the quality of the relationship of those who had made a public commitment to each other by being married or having formed a civil partnership as compared to cohabitants  By 36(6) the court is obliged to consider IN ADDITION to the factors common to entitled applicants and former spouses and former civil partners (e) The nature of the parties relationship and in particular the level of commitment involved in it(Amended by s2(2) of the Domestic Violence ,Crime and Victims Act 2004) (In assessing the nature of parties’ relationship the court must have regard in particular to the level of commitment involved in it.Previously in s41 of the 1996 Act,which required the court “to have regard to the fact that they have not given each other commitment involved in

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marriage” .The provision was inserted by Parliament to stress the symbolic significance of marriage and to penalise cohabitation ,but it is doubtful whether it added very much substance to other factors specified. For example, it is unlikely that a court hearing an application by a woman who had lived with her partner for twenty years,raised their children ,and ran a business together was going to reject their application because they did not get around to the paper work The length of time during which they have cohabited (Amended by Sch 10 para 34(3) to the Domestic Violence,Crime and Victims Act 2004 Whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility The length of time that has elapsed since the parties ceased to live together and The existence of any pending proceedings between them over property

When determining whether to include any regulatory provisions in the order the court is required to consider the same common factors as before and the balance of harm test (Section 36(7)-(8)) For cohabitants and former cohabitants, this test does not operate as a presumption in favour of making an order but only as a further consideration The differentiation was made by Parliament as a further attempt to distinguish cohabitation from marriage

DURATION OF AN ORDER 

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Pursuant to the Law Commission ,it considered that the purpose of occupation orders for non-entitled applicants is provide relatively short term protection to enable applicant to find alternative accommodation , await the outcome of legal proceedings over the property or to reconcile with the respondent While entitled applicants are able to obtain orders of unlimited duration ,the act restricts this for non-entitled applicants (distinguishing between marriage and non-marriage ) Pursuant to s 49 the order may be varied or discharged on the application of either party

Former spouse and former civil partners Section 35(10) limits the length of an order in favour on non-entitled former spouse or former civil partner to a specified period not exceeding 6 months, although the order may be extended on one or more occasions Cohabitants and former cohabitants 

Section 36(10) limits the duration of an order to a maximum period of six months and provides that only one extension can be given,for a further period of 6 months

The consequence of these provisions (especially to cohabitants) is to provide a clear advantage not merely to those who are married or in a civil partnership as opposed to those that cohabit but those who can establish property rights,as opposed to those who cannot

NEITHER PARTY ENTITLED TO REMAIN IN OCCUPATION OF THE HOME   

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Where neither spouse nor civil partner has a property right in respect of the family home, then neither can have home rights and therefore cannot be classed as an entitled applicant Former spouses, civil partners or cohabitants may be living in a property in which neither has the right to remain for example as bare licensees or squatters Since the former law permitted spouses and cohabitants to obtain ouster injunctions in such circumstances,the Law Commission recommended the protection to continue and to be extended to the other classes of non-entitled applicants Section 37 and 38 permits applicants to obtain regulatory orders ,to control occupation of the property by the applicant and the respondent In respect of spouses and civil partners and former spouses and former civil partners ,the criteria for making such an order are the same as that applied to entitled applicants, including the balance of harm presumption (Section 37(4)) Any order made is subject to a maximum duration of six months,although it may be extended on more than one occasion (Section 37(5)) A court considering whether to make an order in favour of a cohabitant or former cohabitant may have regard to the factors common to all application (Section 38(4) :housing needs ,financial resources ,likely effect of nay order on the health, safety or wellbeing of the parties, or a relevant child and the parties conduct) and then consider the balance of harm test although not as a presumption in favour of making an order but only as further consideration

ADDITIONAL PROVISIONS     

Where the court makes an order under s33,s35 or s36 it may at the same time or at any time afterwards include additional provisions (Section 40) It may impose on either party the obligations as to the repair, and maintenance of the property or payment of rent ,mortgages or other outgoing This may be important to preserve the long term security of the property However s40 is unenforceable In Nwogbe v Nwogbe COS upheld the trial judge’s view that since the provision in Section 40 are not expressly mentioned in any of the legislation concerning the enforcement of debts or judgements,there was no power to commit the husband who had failed to pay the monthly rent on the matrimonial home to prison for the contempt of court.Despite the court’s opinion that this required urgent attention the lacuna is still there

ENFORCING ORDERS INTRODUCING THE POWER OF ARREST  

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Breach of terms of a court order may be a civil contempt of court ,but contempt procedures normally take a few days and in the meantime, the victim may be at risk The former legislation empowered the court ,that on making an order restraining the respondent from using violence or excluding the respondent from a home, to attach a power of arrest to the order Courts such as in Lewis v Lewis by Ormrod LJ considered that by empowering summary arrest and detention for a breach of civil order,there was a civil liberties implication and thus power

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could only be used “where men or women persistently disobey injunctions and make a nuisance of themselves to the other party and to others concerned” Thus the power of arrest was attached to only minority cases (In 1996 out of 22652 injunctions granted under the 1976 Act ,10,049 (44% ) had a power of arrest Pursuant to Section 47 of the Family Law Act 1996 ,if a court made an occupation or nonmolestation order and it appeared to the court that the respondent had USED or threatened violence against the applicant or relevant child ,it had to “attach the power of arrest…unless satisfied that in all circumstances of the case the applicant or child will be adequately protected without such power of arrest” 47(2)

BREACH OF NON MOLESTATION ORDER MADE A CRIMINAL OFFENCE 

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The Domestic Violence ,Crime and Victims Act 2004 therefore inserted s42(A) into the 1996 Act to provide 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 Those seeking to enforce the non-molestation order have to choose whether to ask for the offence to be charged or proceed via contempt proceedings,as the defendant cannot be punished twice (Section 42A(3)(4) A criminal route may be preferred because it clarifies the power of the police and the maximum sentence on conviction on indictment is a term of imprisonment of five years plus a fine (Section 42A(5)(a)) Compared with the contempt of court where there is a two years imprisonment for contempt: Contempt of Court Act 1981 s14(1)

POWER OF ARREST FOR BREACH OF OCCUPATION ORDER 

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The breach of occupation order has not been made a criminal offence,but when a court is deciding whether to make an occupation order ,the court must consider whether to make a non-molestation order of its own motion By doing so ,it will bring in the criminal sanction for the breach of the latter order, which one might assume, will encompass acts in breach of the occupation order as well. Section 47 provides that ,while it is no longer possible to attach a power of arrest to a nonmolestation order ,the court may continue to do so when making an occupation order (As amended by the Domestic Violence, Crime and Victims Act 2004 Sch10 para 38 ) Pursuant to s47(6) : where such power is attached,a police constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any provision in the occupation order to which the arrest power is attached

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If the respondent is arrested for breach of non-molestation order under s42(A) ,he will be subject to the usual criminal justice process regarding detention,charge and remand. If arrest is made under s47,the purpose of the arrest is to bring the respondent to the relevant judicial authority for the punishment for contempt. This must be done within 24 hours from the time of arrest (Excluding Christmas Day, Good Friday or any Sunday s47(7) and he may then be remanded,on bail or in custody or dealt with for the breach

EXPARTE ORDERS  

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It was possible under the former legislation to obtain an order exparte (without notice) The court considered that exparte orders should only be made where it was necessary to act quickly to avert a real and immediate danger of serious injury or irreparable damage Ansah v Ansah On appeal by W against an ex parte order restraining her from returning to or entering upon the matrimonial home and from molesting H the court held, where, in matrimonial proceedings, injunctions are granted and enforced the court should only act ex parte in an emergency. Such a situation was where the interests of justice or the protection of the applicant or child clearly demanded immediate intervention by the court in the practice of making suspended committal orders were remedies of last resort. They might be effective in some cases, but it could be dangerous. Both the appeal against the injunction and the suspended committal order were allowed. The Law Commission recognised the drawbacks of without notice orders where they might be based on misconceived or malicious allegations with no opportunity for the court to test this out. Vast majority of applications for both non-molestation and occupation orders (20,224 out of 23885 in 2013)-Court Statistics January to March are infact made exparte Section 45 provides that a court may make either a non-molestation order or occupation order exparte where “it considers it just and convenient to do so” but must have regards to all circumstances including (a) Any risk of significant harm to the applicant or a relevant child,attributable to the conduct of the respondent ,if the order is not made immediately (b) Whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately (c) Whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that an applicant or a relevant child will be seriously prejudiced by the delay involved. Pursuant to s45(3) ,(4) : The court making an order must afford the respondent the opportunity of a full hearing as soon as it is just and convenient and the duration of any occupation order made at the full hearing must be calculated taking into account the date when the exparte order was made Pursuant to s47(3) as amended by Sch 10 para 38(4) to the Domestic Violence,Crime and Victims Act 2004 : court may attach a power of arrest to an exparte occupation order if it appears that respondent has used or threatened violence against applicant or a relevant child and there is a risk of significant harm,attributable to the respondent’s conduct if the power of arrest is not attached to the order immediately

Undertakings 

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An undertaking is where the respondent gives a promise to the court in terms of the proposed order,for example,that he would not molest the applicant and will leave the home within seven days It was the respondent’s advantage since no finding of fact would be made on applicant’s allegations against him It was the court’s advantage because it obviated the need for a full hearing and thus saved time

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It was to the applicant’s advantage because she did not need to give evidence against the respondent in court , and because an undertaking has the effect of an order of the court and is therefore enforceable through contempt proceedings Section 46 (as amended) empowers the court to accept an undertaking from any party to the proceedings However a police power of arrest may not be attached to an undertaking (Section 46(2)) so an applicant who agrees to an undertaking rather than proceeding with her application runs the risk of facing difficulty if she needs practical enforcement measures to be taken in the future Section 46(3) provides that a court shall not accept an undertaking “instead of making an occupation order in any case where,apart from this section a power of arrest would be attached to the order”. Section 46(3A) also directs a court not to accept an undertaking instead of making a nonmolestation order where it appears that the respondent has used or threatened violence against the applicant or relevant child and for their protection,it is necessary to make a non-molestation order so that any breach may be punishable under s42A

PROTECTION FROM HARASMENT ACT 1997      

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Before the Protection of Harassment Act 1997, attempts were made to extend the existing law of tort to cover harassment It was held in Patel v Patel,that harassment does not amount to a distinct tort However in old cases it has been held that conduct calculated to impair the plaintiff’s health and having that effect ,was a tort. COA in Burnett v George : was able to hold that pestering having the like consequence could be restrained by injunction The civil law was extended by the 1997 act As well as creating the new criminal offences of harassment ,also created a statutory tort of harassment which can be brought “by the person who is or may be the victim of the course of conduct in question”. (Section 3(1)) Section 3(2) provides for damages to be awarded for any anxiety caused by the harassment and any financial loss which results. It has been held that there is no bar on concurrent applications under both s42 of the 1996 act and this provision The High Court or County Court may also issue an injunction to prohibit further harassment and plaintiff may apply for a warrant of arrest to be issued where he/she considers that the defendant has broken the terms of such an injunction Pursuant to s3(6)-(8) : breach of the injunction may be punishable either as a contempt of court or where the defendant has no reasonable excuse,as an offence The offence is punishable on indictment by imprisonment for a term not exceeding five years and/or a fine or on a summary conviction ,to imprisonment for a term not exceeding six months and/or a fine : s3(9)