Understanding Domestic Violence: Legal Perspective - Discourse by Shamima Ali, Study notes of Remedies

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Domestic Violence – A Legal POV

Speaker:

Shamima Ali (Solicitor and Specialist in Domestic

Violence)

Definition: What is Domestic Violence?  The cross-government definition of DV and abuse is any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender sexuality. The abuse can encompass, but is not limited to:  Psychological  Physical  Sexual  Financial  Emotional

Yemshaw (Appellant v London Borough of Hounslow (Respondent) [2011] UKSC 3  Baroness Hale rejected the idea that protection from domestic violence should only apply where physical violence is/was present in the circumstances;  “Violence” is a word very similar to the word “family”… It is capable of bearing several meanings and applying develop over time… the essential question… is whether an updated meaning is consistent with the statutory purpose – in that case providing a secure home for those who share their lives together. In this case the purpose is to ensure that the victim of DV has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere.”

CIVIL REMEDIES

 NMOs

 Occupation Orders

 PHOs

 FMPOs

 There are of cuorse criminal remedies such as

restraining orders and DVPOs – these will be

discussed later

Non-Molestation Orders

 The court must consider all the circumstances of the case including the health, safety and wellbeing of the Applicant and any relevant child  The burden of proof is upon the balance of probabilities – i.e. is there more than 51 % chance of the issues taking place  Therefore – we must consider the impact upon the victim’s health and condition  Molestation is not defined anywhere in the statute but it is only important to note that it is not limited to physical harm

Occupation Orders – 2 stage test

 Where both the Applicant and Respondent have a

right to reside in the property, the court will apply a

two stage test:

 Balance of harm – if met then they must make the order  All circumstances included in s.33 (6) of the FLA

 Chalmers v johns [1999] 1FLR 392 – should consider

the balance of harm test first and then apply the

factors of s.33(6)

No Right to Occupy – Former Spouse

 Apply all the factors of s. 35 ( 6 ) and the Balance of

Harm Test

 Similar factors to s. 33 ( 6 ) except, we must also look at_

 Length of time since the parties ceased living together and since the marriage was dissolved;  Any pending applications (financial/divorce)

 Duration – 6 months (but can be extended further 6

months at a time

No Right to Occupy

 No 2 stage test  Consider Balance of Harm Test together with all factors of s. 33 ( 6 ) and –

 Nature of relationship (level of commitment)

 Length of time they had cohabited

 Length of time since they separated

 Any Pending proceedings (Schedule 1 CA 1989 or

TOLATA)

 Duration 6 months with only one extension of 6 months

allowed

Applications for injunctions by 16- 18 year olds  Allocation and Transfer of Proceedings Order 2008 , Article 6 –  16 - 18 year olds are allowed to apply for NMOs  Applications only allowed in the county court and only allowed in High Court if the proceedings are exceptionally complex  Level of the court is not required like other children proceedings  Must require litigation friend/guardian or official solicitor due to capacity issues

Applications for injunctions by under 16 year olds

 Applicant requires leave to apply for either NMO or

OCC

 Only granted leave if satisfied that child has sufficient

understanding to make the proposed application

 Will have an appointed Guardian/Litigation Friend

and/or OS

Without Notice / Ex-Parte

 S. 45 FLA 1996  If just and convenient to do so  Must consider all circumstances including –  Any risk of significant harm to the applicant or child, attributable to conduct of Respondentm if order not made immediately;  Likely that applicant would be deterred or prevented from pursuing the app if an order is not made immediately;  If Respondent aware of proceedings but is deliberately evading service and that the applicant or child would be seriously prejudiced by the delay involved in effecting service  The Respondent must be afforded the opportunity to make representations relating to the order as soon as just and convenient at a full hearing

Case Law Examples

 B v A [ 2012 ] EWHC 3127 (Fam) – Applicant should provide the court a balanced, fair and particularised account of the events leading up to the application and what she thinks the respondent’s case is likely to be – full disclosure of all relevant circumstances  JM v CZ [ 2014 ] EWC 1125 (Fam) – Allowing the Respondent to apply to discharge or vary the order did not comply with the stat requirements of s 45 ( 2 ) for a full hearing as soon as just and convenient to do so – should list a return dated within 14 days with the Respondent having to notify in writing to court within 7 days of his intention to attend the court, otherwise hearing would be vacated

Protection from Harassment Act 1997

 S. 1 – “ a person must not pursue a course of conduct

which amounts to harassment of another which he

knows or ought to know amounts to harassment of

another”

 Injunctions

 Anyone can apply  Course of conduct – ( 2 or more incidents)  Damages awarded  Normal County Court app – not family court

Enforcement – Civil Injunctions

 Penal Notice attached to NMO warning the

respondent that any breach may result in

imprisonment

 Ex-parte NMO – only guilty of breaching the order if

he were made aware of the existence of the order

 Occ Orders may have PoA

 PfHA – criminal offence if breached

 Sentencing powers

 Summary trial – fine or up to 6 months imprisonment  Indictment – up to 5 years imprisonment and/or fine  CommunityBastian Lloyd orders-Morris Solicitor Advocates LLP e.g. DVPP^20