Domestic Abuse Legislation

DOMESTIC ABUSE LEGISLATION

Below are listed some acts and orders which may be helpful in your case –

ACTS

• Civil Law Orders –
  • Non-molestation orders

A non-molestation order is an order that protects you from any potential harassment or violence. This includes any children relevant to the situation.

• • Family Law Act 1996 – Section 42 
    • (Protection from Molestation) – provision prohibiting a person (“the respondent”) from molesting another person who is associated with the respondent; (b) provision prohibiting the respondent from molesting a relevant child.

• • Occupation Orders

An occupation order can either confer a right to occupy on someone/enforce a pre-existing right to occupy or exclude another party from the property/regulate their occupation of it.

There are many of versions depending on property rights and the relationship:

• • • Family Law Act 1996 – Section 35
      • Where one former spouse/former civil partner is entitled to occupy but the other is not, the non-entitled party may apply for an order against the other.

• • • Family Law Act 1996 – Section 36
      • Where one cohabitant/former cohabitant is entitled to occupy but the other is not, the non-entitled party may apply for an order against the other.

• • • Family Law Act 1996 – Section 37 –
      • Current and former spouses/civil partners, where neither party is entitled to occupy the property – either of the parties may apply to the court for an order against the other.

• • • Family Law Act 1996 – Section 38
      • Current and former cohabitants, where neither party is entitled to occupy – either of the parties may apply to the court for an order against the other.

• Balance of Harm Test
  • Family Law Act 1996 – Section 33(7)
    • If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to the court that—
      • (a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and 
      • (b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

• Significant Harm
  • Family Law Act 1996 – Section 63(1): ‘harm…’
    • (a) in relation to a person who has reached the age of eighteen years, means ill-treatment or the impairment of health; and 
    • (b) in relation to a child, means ill-treatment or the impairment of health or development.
      • “Development” means physical, intellectual, emotional, social or behavioural development.
      • “Health” includes physical or mental health.
      • “Ill-treatment” includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse;…’.

• Likely

This refers to the likelihood that a person will suffer in the future. A case relating to this is listed below beneath the ‘Likely to suffer (in the future)’ subheading.

• Factors to be taken into account
  • Family Law Act 1996 – Section 33(6)
    • (6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall 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 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.

• Undertakings
  • Family Law Act 1996 – Section 46
    • (1) In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from any party to the proceedings. (2) No power of arrest may be attached to any undertaking given under subsection (1) [ instead of making an occupation order].

• Harassment and Stalking

Definition of harassment from a 2013 case – “Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress” (Hayes v Willoughby [2013] UKSC 17, per Lord Sumption JSC at para.1).

• • Protection from Harassment Act 1997 – Section 1(1)
    • A person must not pursue a course of conduct which –
      • (a) which amounts to harassment of another, and
      • (b) which he knows or ought to know amounts to harassment of the other.

• • Protection from Harassment Act 1997 – Section 2 and 3
    • Harassment is a criminal offence (Section 2) and a civil wrong (Section 3).

• • Protection from Harassment Act 1997 – Section 7(2)
    • ‘References to harassing a person include alarming the person or causing the person distress’.

• Coercive Control
  • Serious Crime Act 2015 – Section 76
    • Controlling or coercive behaviour in an intimate or family relationship. A person (A) commits an offence if —
      • (a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
      • (b) at the time of the behaviour, A and B are personally connected, (defined in section 76(2))
      • (c) the behaviour has a serious effect on B (defined in section 76(4)), and
      • (d) A knows or ought to know that the behaviour will have a serious effect on B.

• Domestic Abuse Act 2021 – Section 22-26 and Section 27-45

Section 22-26 is about protection notices. Section 27-45 is about protection orders.

CASES

Below are listed some cases which may be helpful. A basic summary or a relevant quote has been included with the case titles. Feel free to read more into the cases and get more details into the ones that may help you – 

• European Court of Human Rights
  • Opuz v Turkey (2009, European Court of Human Rights).

    • “…the Court must stress that the issue of domestic violence, which can take various forms ranging from physical to psychological violence or verbal abuse, cannot be confined to the circumstances of the present case. It is a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or close circuits and it is not only women who are affected. The Court acknowledges that men may also be the victims of domestic violence and, indeed, that children, too, are often casualties of the phenomenon, whether directly or indirectly. Accordingly, the Court will bear in mind the gravity of the problem at issue when examining the present case.” (para.132).

• Courts opinion on violence
  • Yemshaw v Hounslow London Borough Council [2011] 1 W.L.R. 433. – The meaning of violence.

    • Judge Baroness Hale said “Was this, in reality, simply a case of marriage breakdown in which the claimant 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? This is not to apply a subjective test… The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved.” (per Baroness Hale, para.36).

• Meaning of Molestation
  • Re T (Non-Molestation Order) [2017] EWCA Civ 1889
    • “When determining whether or not particular conduct is sufficient to justify granting a non-molestation order, the primary focus, as established in the consistent approach of earlier authority, is upon the “harassment” or “alarm and distress” caused to those on the receiving end. It must be conduct of “such a degree of harassment as to call for the intervention of the court.”

• • C v C (Non-molestation Order: Jurisdiction) [1998]
    • Judge McFarlane LJ said “Although in C v C [2001] EWCA Civ 1625 the phrase “was calculated to cause alarm and distress” was used, none of the authorities require that a positive intent to molest must be established.” (per McFarlane LJ, para.42).

• High Threshold?
  • Grubb v Grubb [2009] EWCA Civ 976
    • Judge Wilson LJ said, “The occupation order is likely to carry its greatest level of seriousness when it is made against a spouse to whom alternative accommodation is not readily available.”

• • Dolan v Corby [2011] EWCA Civ 1664
    • Judge Black LJ said, “Exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

• • Re L (Children) [2012] EWCA 721
    • Judge Black LJ said, “There is nothing in section 33(6) to limit the discretion to make an occupation order to cases in which there has been physical violence…”.

• Case relating to above section ‘Likely to suffer (in the future)’
  • B v B (Occupation Order) [1995] 2 FCR 251
    • Judge Butler-Sloss LJ said, “In our judgment, if, on the facts of this case, the respective likelihoods of harm are weighed so far as the two children are concerned, the balance comes down clearly in favour of MB (child from husband’s previous marriage) suffering the greater harm if an occupation order is made.” In this case, the wife applied for an occupation order against the husband who was abusive. The wife and her son had been placed in temporary accommodation. This order included the husband’s son from a previous marriage being barred from the house. It was determined that although the wife and her son would suffer significantly without the order, the harm towards the husband’s son would be greater as he would not have access to either his school or his home.