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Domestic Violence

Domestic Violence. What will we cover?. What is domestic abuse? Remedies The procedure Legal Aid. What is domestic abuse?. What is domestic abuse?.

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Domestic Violence

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  1. Domestic Violence

  2. What will we cover? • What is domestic abuse? • Remedies • The procedure • Legal Aid

  3. What is domestic abuse?

  4. What is domestic abuse? “any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other” - LASPO 2012, Schedule 1, Part 1, paragraph 12 (9) ‘

  5. How common is domestic abuse? • 1 in 4 women experience domestic violence (many numerous times) and 1 in 6 men in their lifetime • On average 2 women a week are killed by their current/former partner and 30 men per year • 1 incident of domestic violence is reported to the police every minute • Domestic violence accounts for 16%-25%of all recorded violent crime yet it is the violent crime least likely to be reported to the police • 54% of rapes are committed by a woman’s current/former partner • It is the single most quoted reason for becoming homeless • Women stay in abusive relationships on average 7 years • In 2011 the FMU gave advice or support on forced marriage 1468 times

  6. Remedies

  7. What are the remedies? Family Law Act 1996: • Non-molestation order • Occupation order • Forced marriage protection order Protection from Harassment Act 1997: • Protection from Harassment Act order • Criminal sanctions Other: • Warning letter • Practical remedies • Report to the police

  8. Non-molestation orders

  9. Non-molestation orders, s42(1) FLA 1996 Test • All of the circumstances of the case • Health, safety and well being In practice? • Assaulted/threatened/ harassed • Recent • Might happen again • Emergency protection!

  10. Standard terms • Forbids violence • Forbids harassing, intimidating or pestering • Forbids contacting directly or indirectly • Covers Respondent (& others acting on behalf of Respondent) • Zonal paragraph? • Communication for contact? • Beware court/ judicial inconsistencies!

  11. Should children be covered? Should some contact be allowed What about damage to property What other addresses might need to be covered Covering any specific harassment- such as through Facebook, posting photos Any others? Taylor the terms to fit the case

  12. Who can apply? Associated persons include: • Spouses/former • Cohabitants/former • Live/have lived in same household • Relatives- wide definition! • Are/have been engaged • Parents/PR for same child • Parties to family proceedings • Intimate personal relationship of significant duration

  13. Breach • Criminal offence! • Punishable by prison and/or fine • Follow up by the criminal court

  14. Undertakings

  15. Undertakings • Binding promise to the court • Should the court accept? • Breach not a criminal offence • Breach is contempt of court • Set form/words/procedure • BE CAREFUL BEFORE ACCEPTING CROSS UNDERTAKINGS

  16. Occupation orders

  17. Occupation orders, s33-41 FLA 1996 Can regulate occupation by: • Suspending the Respondent’s rights • Giving Applicant rights The orders available depend on: • Who is entitled to occupy • The relationship between the parties • The property being the parties’ home

  18. Who can apply? Which section? Applicant is entitled to occupy s33 Applicant not entitled to occupy/Respondent is and: • parties are former spouses s35 • parties arecohabitants/former s36 Neither entitled to occupy and: • parties are spouses/former s37 • parties are cohabitants/former s38

  19. Power of arrest, s47 • If Respondent used/threatened violence • SHALL attach a power of arrest • UNLESS adequately protected without • Can attach to without notice order • Respondent brought before family court

  20. Ancillary orders, s40 Linked financial orders e.g.: • Mortgage/rent • Utility bills • Property maintenance Test- all the circumstances inc. financial needs/resources/obligations NB Tenancies • Can Respondent surrender? • Consider injunction to prevent

  21. Duration of orders NMO Specified period or until further order Occupation order s33 specified period or until further order s35 and s37 Maximum 6 months, can extend once or more maximum 6 months/time s36 and s38 Maximum 6 months, can extend once maximum 6 months

  22. Forced marriage protection

  23. The Forced Marriage (Civil Protection) Act 2007 inserted Part 4A FLA 1996 Forced marriage protection orders,Part 4A FLA 1996 • Prevent forced marriages • To protect/remove victim of forced marriage • Relate to conduct in the UK or abroad • Applicant can be victim or 3rd party • Respondent need not be party to the marriage • Court considers all circumstances inc. health, safety, wellbeing and wishes of the victim

  24. Protection from harassment

  25. MUST BE: harassment course of conduct Breach is a criminal offence Differences FLA/PHA applications, PHA: Not associated persons Civil Procedure Rules, open court Application can include damages claim Protection from Harassment Act orders, PHA 1997

  26. Warning letter

  27. WARNING If behaviour continues will face court action To act as a deterrent Will it offer enough protection/ be constructive? Level of abuse Personality of Respondent Applicant’s feelings Impact on working relationship re children No merits to apply for order Warning letter

  28. Criminal remedies

  29. Criminal remedies • Criminal offence? • Coercive control • Bail • Restraining orders • DVPN / DVPO • Police information notice (PIN) • Protection from harassment

  30. Practical remedies

  31. Practical remedies • Refuge • Move to confidential address • Change telephone number • Block on phone and social media • Signpost to DV organisations • Safety planning • Alarms

  32. Prohibited steps order application

  33. Prohibited steps order • What is it? • Gateway evidence • Application of the court’s own motion

  34. Without notice applications

  35. Applying without notice, s45 (2) • ‘Just and convenient’ • Consider all circumstances including- risk of harm, prevention, service evasion • Explain why application without notice • Respondent’s opportunity? • Different NMO/occupation order • Alternatives- full/abridged notice

  36. An overview of the process • Without notice hearing • Service • Mention or return hearing • Contested hearing

  37. Statement Detailed statement needs to cover: • Brief background history of relationship • Detail first incident of violence • Detail worst incidents of violence • Detail latest incidents of violence • Involvement of outside agencies? • Any witnesses • Impact on/ involvement of children? • Aggravating features? • Why without notice? • If children detail PR/contact etc.

  38. Legal aid

  39. Merits • Means • Delegating • a

  40. Andrew Beale Principal Solicitor The Family Law Practice 549-551 Cable Street London EW1 3EN Tel: 020 7791 0432 Fax: 020 7791 0440 Email: Andrew.Beale@famlawpractice.co.uk

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