Domestic Abuse Flashcards
The Domestic Abuse Act 2021 provides the first statutory definition of domestic abuse and s. 1 states:
(1)
This section defines ‘domestic abuse’ for the purposes of this Act.
(2)
Behaviour of a person (‘A’) towards another person (‘B’) is ‘domestic abuse’ if—
(a)
A and B are each aged 16 or over and are personally connected to each other, and
(b)
the behaviour is abusive.
(3)
Behaviour is ‘abusive’ if it consists of any of the following—
(a)
physical or sexual abuse;
(b)
violent or threatening behaviour;
(c)
controlling or coercive behaviour;
(d)
economic abuse (see subsection (4));
(e)
psychological, emotional or other abuse;
and it does not matter whether the behaviour consists of a single incident or a course of conduct.
Definition of Domestic Abuse
‘Controlling behaviour’ is defined as: a range of acts designed to make a person subordinate and/or dependent 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 behaviour. ‘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 the victim. This definition, which is not a legal definition, includes so-called ‘honour’-based violence, female genital mutilation (FGM) and forced marriage, and it is clear that victims are not confined to one gender or ethnic group.
‘Economic abuse’ means any behaviour that has a substantial adverse effect on a person’s ability to acquire, use or maintain money or other property, or obtain goods or services (s. 1(4)). This behaviour may be behaviour consisting of conduct directed at another person, for example the complainant’s child (s. 1(5)).
Section 76 of the Serious Crime Act 2015 provides for an offence of ‘controlling or coercive behaviour in an intimate or family relationship’ Controlling or coercive behaviour is defined under this section as causing someone to fear that violence will be used against them on at least two occasions or generating serious alarm or distress that has a substantial effect on their usual day-to-day activities.
In relation to s. 1(2)(a) above, the Domestic Abuse Act 2021, s. 2 states:
(1)
For the purposes of this Act, two people are ‘personally connected’ to each other if any of the following applies—
(a)
they are, or have been, married to each other;
(b)
they are, or have been, civil partners of each other;
(c)
they have agreed to marry one another (whether or not the agreement has been terminated);
(d)
they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(e)
they are, or have been, in an intimate personal relationship with each other;
(f)
they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (2));
(g)
they are relatives.
(2)
For the purposes of subsection (1)(f) a person has a parental relationship in relation to a child if—
(a)
the person is a parent of the child, or
(b)
the person has parental responsibility for the child.
Definition of ‘Personally Connected’
For the purposes of s. 2, ‘child’ means a person under the age of 18 years, ‘civil partnership agreement’ has the meaning given by s. 73 of the Civil Partnership Act 2004, ‘parental responsibility’ has the same meaning as in the Children Act 1989 (see s. 3 of that Act) and ‘relative’ has the meaning given by s. 63(1) of the Family Law Act 1996 (s. 2(3)).
The Domestic Abuse Act 2021, s. 3 states:
(1)
This section applies where behaviour of a person (‘A’) towards another person (‘B’) is domestic abuse.
(2)
Any reference in this Act to a victim of domestic abuse includes a reference to a child who—
(a)
sees or hears, or experiences the effects of, the abuse, and
(b)
is related to A or B.
(3)
A child is related to a person for the purposes of subsection (2) if—
(a)
the person is a parent of, or has parental responsibility for, the child, or
(b)
the child and the person are relatives.
Domestic Violence Protection Notices and Orders
A Domestic Violence Protection Notice (DVPN) is the initial notice issued by the police to provide emergency protection to an individual believed to be the victim of domestic violence and abuse.
The purpose of a DVPN is to secure the immediate protection of a victim of domestic violence and abuse (V) from future violence or a threat of violence from a suspected perpetrator (P). A DVPN prohibits P from molesting V and, where they cohabit, may require P to leave those premises.
Where a DVPN has been issued, a constable must apply to a magistrates’ court for a Domestic Violence Protection Order (DVPO). The application must be heard by the magistrates’ court not later than 48 hours after the DVPN was served (s. 27). The DVPO is an order lasting between 14 and 28 days, which prohibits P from molesting V and may also make provision about access to shared accommodation (s. 28).
A person who breaches a DVPN may be arrested without warrant (s. 25(1)(b)) and must be held in custody to appear before a magistrates’ court within 24 hours when an application for a DVPO can be heard (s. 26).
The Home Office has published a Domestic Violence and Abuse chapter to add to the Guide on Firearms Licensing Law (July 2013) that is available on the gov.uk website. It outlines that general evidence of domestic violence and abuse will indicate that an individual should not be permitted to possess a firearm or shotgun, and all cases must be assessed by the police on their own merits. It also says that every incident of domestic violence and abuse should prompt a police review of whether a certificate holder should be allowed to hold a firearm without posing a danger to the public.
The power to issue a domestic violence protection notice is provided by s. 24 of the Crime and Security Act 2010, which states:
(1)
A member of a police force not below the rank of superintendent (‘the authorising officer’) may issue a domestic violence protection notice (‘a DVPN’) under this section.
(2)
A DVPN may be issued to a person (‘P’) aged 18 years or over if the authorising officer has reasonable grounds for believing that—
(a)
p. 473P has been violent towards, or has threatened violence towards, an associated person, and
(b)
the issue of the DVPN is necessary to protect that person from violence or a threat of violence by P.
(3)
Before issuing a DVPN, the authorising officer must, in particular, consider—
(a)
the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),
(b)
the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN,
(c)
any representations made by P as to the issuing of the DVPN, and
(d)
in the case of provision included by virtue of subsection (8), the opinion of any other associated person who lives in the premises to which the provision would relate.
(4)
The authorising officer must take reasonable steps to discover the opinions mentioned in subsection (3).
(5)
But the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN.
Domestic Violence Disclosure Scheme
The Domestic Violence Disclosure Scheme, also known as Clare’s Law, gained momentum following the tragic case of Clare Wood, who was murdered by her former partner in 2009. Her partner had three previous convictions under the Protection from Harassment Act 1997.
Disclosures under the scheme are determined by local multi-agency forums consisting of police, probation services, social services and other agencies who decide whether any disclosure is lawful, necessary and proportionate. The scheme may overlap with and complement other disclosure processes, such as Multi-Agency Public Protection Arrangements (MAPPA) and the Child Sex Offender Disclosure Scheme (Sarah’s Law) and consideration should be given to which process is the most appropriate in each case.
An explanation of the scheme is provided by the Home Office Domestic Violence Disclosure Scheme (DVDS) Guidance (2016) and the following is an extract from that guidance:
10.
The police have common law powers to disclose information about a person’s known history of violence or abuse, normally relating to previous convictions or charges, to the public where there is a pressing need for disclosure of the information in order to prevent further crime. The principal aim of the Domestic Violence Disclosure Scheme is to introduce recognised and consistent procedures, based on this common law power, for the police to consider the disclosure of information in order to protect a member of the public who may be at risk of harm from domestic violence or abuse. Critical to the success of the scheme is the need for a risk assessment to be completed at every stage in the disclosure process, as this will inform the practical actions necessary to safeguard the potential victim and inform the development of a potential disclosure under this scheme.
11.
The Domestic Violence Disclosure Scheme recognises two procedures for disclosing information: ‘Right to ask’ is triggered by a member of the public applying to the police for a disclosure. ‘Right to know’ is triggered by the police making a proactive decision to disclose information to protect a potential victim.
12.
The scheme provides the following benefits:
a.
introduces recognised and consistent procedures for disclosing information that enables a partner (A) who is/was in an intimate relationship with a previously violent or abusive individual (B) to make informed choices about continuing in that relationship or about their personal safety if no longer in the relationship;
b.
enhances the previous arrangements whereby disclosure occurred largely in a reactive way when agencies came into contact with information about an offender having a history of previous violence;
c.
under ‘right to ask’, individual members of the public, whether the partner (A) or a third party (C), can now proactively seek information, with an expectation that the agencies responsible for safeguarding victims of domestic violence will check to see whether relevant information exists and if it does, that consideration will be given to its disclosure where necessary to protect the victim;
d.
under ‘right to know’, where a safeguarding agency comes into the possession of information about the previous violent and abusive behaviour of B that may cause harm to A, members of the public can now expect the safeguarding agency to consider whether any disclosure should be made and to disclose information if it is lawful, i.e. if it is necessary and proportionate to protect the potential victim from crime;
e.
encourages individuals to take responsibility for safety of the potential victim.
13.
The Domestic Violence Disclosure Scheme is focused on disclosure and risk management where B is identified as having a conviction, caution, reprimand, or final warning for violent or abusive offences; and/or information held about B’s behaviour which reasonably leads the police and other safeguarding agencies to believe that B poses a risk of harm to A. There is a non-exhaustive list of the relevant offences at Annex B.
The Family Law Act 1996, s. 42 states:
(1)
In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions—
(a)
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.
(2)
The court may make a non-molestation order—
(a)
if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or
(b)
if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.
Non-molestation Orders
Non-molestation orders can be applied for even though no other proceedings have been commenced. Such orders do not relate just to spouses or former partners; they apply to anyone who is ‘associated’ with the respondent.
In deciding whether or not to make such an order, the court must consider all the circumstances, including the need to secure the health, safety and well-being of the applicant or any relevant child (s. 42(5)).
OFFENCE
Breach of a Non-molestation Order—Family Law Act 1996, s. 42A
- Triable either way
- Five years’ imprisonment and/or a fine on indictment
- 12 months’ imprisonment and/or a fine summarily
The Family Law Act 1996, s. 42A states:
(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.
(2)
In the case of a non-molestation order made by virtue of s. 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.
Breach of a Non-molestation Order
There is a power of arrest for the breach of a non-molestation order under the provisions of s. 24(1) of the Police and Criminal Evidence Act 1984.
In relation to s. 42A(2), non-molestation orders made by virtue of s. 45(1) are ex parte orders where the respondent has not been present at the proceedings when the order was made.
Restraining orders (see para. 2.8.4.11) may be made on conviction for any offence, rather than only on conviction for offences under the Protection from Harassment Act 1997. Consequently, these orders are available to be used in cases involving domestic violence.
