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Domestic Violence - Essay
Family Law and Relationships (LAWS30771)
University of Manchester
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Historically, family law has been regarded as a private sphere without the interference of state. There is no agreement over the correct terminology to be used to describe violence that takes place between adults in a close relationship. In the past, it was common to refer to domestic violence as but now the violence between those in close emotional relationships is seen as a wider problem. Legal Aid , Sentencing and Punishment of Offenders Act 2012, defined domestic violence as meaning incident or pattern of incident, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each It is important to note that this definition is not restricted to physical attacks but is widely drafted to include financial and emotional abuse and category is not restricted to people living together but includes violence between family members. Kelly and Lovett argue that domestic violence should be seen as but part of the spectrum of violence faced women. The line between domestic violence and stalking, sexual harassment, violence children against parents, elder abuse, and are not easy to draw. Supreme Court recently consider the definition of domestic violence in the case of Yemshaw v Hounslow London in which Lady Hale adopted the definition from practice direction, namely that it physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of Many commentators such as Herring have welcomed the willingness of court to acknowledge that domestic violence is about of the victim, which may be exercised in a range of ways, not all of which will involve an assault. The vast majority of domestic violence takes place against women. It is important to stress that men may be subject to domestic violence but most violence women against men is quite different from violence men against their female partners because violence is often in or an isolated incident. Dobash suggested that it is quite rare for violence against men to be part of an ongoing oppressive incident and where men are victims that injuries seem to be less serious. However, Hester found that where women are assessed the police to be the perpetrator of domestic violence they are three time more likely to be arrested than men. Hester suggested that in many of the cases of arrest the women were in fact using force in Furthermore, the occurrence of domestic violence is often underestimated in public consciousness. Giddens suggests that home is in fact, the most dangerous place in modern society.... far more likely to be subject to physical attack in the home than on the street at There are two kind of order available under the FLA 1996 which a victim of domestic violence can seek: 1) Nonmolestation order and 2) Occupation order. Both of these orders are primarily designed to deter the respondent from abusing the applicant in the future. Under s, FLA 1996 an applicant can apply for a order which is an order prohibiting the respondent from molesting an associated person or a relevant child. Molestation is not defined Family Law Act 1996, that is a deliberate omission and was recommended the Law Commission, which argued that there should not be a definition for fear that it might provide loopholes that a respondent could exploit. It was noted that the lack of a definition had not led to grave difficulties with the law to date. the Law Commission stated that molestation could emcompass form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the Further George v George defines molestation broadly and states that it is not restricted to physical violence but can include threats and verbal abuse. Under s(2)(a), FLA 1996 only associated persons may apply for a nonmolestation order. S(3), FLA 1996 define an associate person as a person is associated with another person if : a) married to each civil cohabitants or former they live or have lived in the same agreed to marry one entered into a civil partnership agreement or have had a intimate personal relationship with each other which is or was of significant in relation to any child, they are the parent or hold parental or they are parties to the same family proceedings. G v G(F) Order: Jurisdiction) provides a purposive construction of the legislation and Lord Wall held that arrangement of visiting two night a week should be regarded as cohabitation. Chechi v Bashier states that relatives such as brothers do fall with the associated person category thus the court had jurisdiction to make a order. Helen Reece suggests that the definition of associated person does not aim to protect the right people. Children can apply on their own behalf for a order under FLA 1996, a child under 16 can only apply for an order with leave of the court if the child has sufficient understanding. Under s (5), FLA 1996 when granting an order, the court will consider the need to secure the health, safety and of the applicant and any relevant child. This is clearly widely drawn test, permitting the court it take into account any circumstances it believe relevant. The aim of the test is to focus on the need for protection in the future rather than requiring proof of the fact or threat of violence in the past. Health is defined to include or mental so it is not necessary to show that there is even a threat of physical violence. One factor the court will consider is whether the order may be misused. if the court fears that the order will simply be used as weapon in the disagreement, rather than to provide protection, the court may decline to make the order. Even if the test is satisfied the court is not obliged to make an order thus the court has wide discretion. In Banks v Banks it was seen as inappropriate to make order against a woman who was suffering from a manic depressive disorder and therefore unable to control her behaviour. The reasoning was that it would be wrong if she were to be guilty of contempt of court through conduct that was beyond her control. Thus the capacity of respondent obey the order will be taken into account. Breach of an injunction is contempt of court, maximum sentence of two years imprisonment. Hale v Tanner 2 FLR 879 imprisonment is not to be regarded as an automatic response to breach of an order and the court should consider alternatives to imprisonment, especially where there is no violence. Suspending the sentence is usually the first way to ensure compliance. Previously, the victim had to decide whether to bring a proceeding for a contempt of court but now if there are no criminal proceedings, the applicant may enforce the order as a contempt of court and apply to court for a warrant of arrest under S(8) FLA. Section 42A of the FLA states that it is a criminal offence for a person to do something he is prohibited from doing a order without reasonable excuse. A person can only be guilty of the offence if when they engaged in the conduct they were aware of the existence of the order. The prosecution has the burden of proof of showing that the defendant did not have a reasonable excuse. Under s(1), FLA 1996, if a make an order considering the general factors in section 33(6). These are: the housing needs and housing resources of each of the parties and of any relevant the financial resources of each of the and health, safety or of the parties and of any relevant child. The Court of Appeal in Chalmers v. John emphasised that even if the significant harm test is not satisfied, the court could still make an occupation order if that was appropriate after considering the general factors in section 33(6). Second, note that in the significant harm test the significant harm must be attributable to the conduct of the respondent. There is a wide variety of forms of occupation order under section 33(3), ranging from removing the respondent from the house to excluding him or her from part of the house. They include: enforcing the right to remain in the requiring the respondent to allow the applicant to enter and remain in the regulating the occupation of the home (e. allowing the respondent to live in one half of the house and the applicant the requiring the respondent to leave the home and suspending or restricting his right to and excluding the respondent from a defined area around the home. In Re Y (Children) The Court of Appeal held that an occupation order should not be made. Occupation orders were and were to be used as a last resort in exceptional cases. Applicant has no right to occupy the property if they are Cohabitants. Under s (8) the court will also consider whether the applicant will suffer significant harm without an order and the impact of any order on the respondent. There is no obligation on the court to make an order under s (8) even if the balance lies in favour of the applicant. The court will merely consider this as an aspect of the exercise of the discretion to make an order. Under s(10), FLA 1996, an order must be made for a specified period, not exceeding six months, and may be renewed once, for a period not exceeding six months. Unders, FLA 1996 the court can, when it makes an occupation order, impose on either party obligations relating to repair or maintenance, or the discharge of rent, mortgage payments and other outgoings. In Nwogbe v Nwogbe Debtors Act 1869 means that breach of order for payment cannot result in imprisonment for contempt of court. A breach of occupation order constitute a contempt of court (as discussed above). Under s(2), FLA 1996 when the court makes an occupation order and the respondent has used, or threatened violence against the applicant or a relevant child, the court shall attach a power of arrest unless satisfied in all the circumstances that the applicant or child will be adequately protected without a power of arrest. s(3) an undertaking should not be accepted the court where a power of arrest should be attached to the occupation order There are other civil injunctions such as protection form harassment Act , to prevent harassment under section 3 which requires the harassment to have occurred at least on two separate incident. The breach of this is again a contempt of court and criminal offence. From March 2014, the police have the power to intervene and seek protective order. s, Crime and Security Act 2010 states police may issue a domestic violence protection notice if a person has been violent or threatened violence towards an associated person (s, FLA 1996) and it is necessary to protect that person, must contain provision preventing molestation, can include provision regulating the occupation of premises. This allows for temporary protection, issued the police without court order. s(2), CSA 2010 states police must apply to magistrates court within 48 hours for a domestic violence protection order CSA 2010 a domestic violence protection order will be made if: The court is satisfied on the balance of probabilities that there has been violence, or threat of violence towards an associated person AND The court thinks that an order is necessary to protect the associated person from violence or threat of violence. Under s(9), CSA 2010, a power of arrest can be attached to a domestic violence protection order. Order lasts for up to 28 days. In conclusion, there are problems of reporting people experiencing violence. Burton has suggested that criminalisation of family member often discourages the victims as it may cause a fear of further violence. Thus wider support mechanisms are required rather than just a legal framework such as intervention police and special unit to deal with the victim of such violence.
Domestic Violence - Essay
Module: Family Law and Relationships (LAWS30771)
University: University of Manchester
