Domestic Abuse Flashcards
Overview of the legislation
Focus on civil remedies in this module.
* Primary piece of legislation until now: Family Law Act 1996.
* New legislation: Domestic Abuse Act 2021.
* DAA 2021 s.1: definition of domestic abuse – this
is in force.
* DAA 2021 introduces new civil injunctions – DAPNs and DAPOs – these parts of the statute are not currently in force – see end of Chapter for info but not examinable.
What is domestic abuse?
- Defined at s.1 DAA 2021.
- s.1(2) DAA 2021- domestic abuse if:
- personally connected; and
- behaviour is abusive.
- s.2(1) defines personally connected – see list of different types of relationship.
- s.1(3) defines abusive behaviour. Includes:
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse.
Can consist of single incident OR course of conduct.
Types of Order
- Nonmolestationorder:
- Protects applicant and children
- Occupation order:
- Regulates occupation of the home.
- Can include respondent’s exclusion from the home or even from coming within a certain distance of the home.
Practical aspects
- Ordersappliedforinanemergency–you will need to act quickly (in very urgent cases applying without notice).
- Funding:
- Can you client afford to pay your fees? Give them a fee estimate before making an application to court.
- Legal Aid? Does your client qualify?
Non molestation Order - s42
Molestation - broadly interpreted
◼ Covers wide range of conduct
Orders are prohibitive in nature
Applicant must be associated with the respondent – s62 FLA 1996
s.42(5)
all the circumstances of the case :
Including the need to secure:
-health
-Saftey
-Well-being of the applicant and /or any relevant child
Non-Molestation Orders
Evidence
-Statement
-Medical
Non- Molestation Orders
Form/ Length of Order
-Open or specified length
-Should cover all types of behaviour
Occupation Orders:
WIDE RANGE OF ORDERS:
* Orders to exclude the Respondent from home and/or surrounding area
* Orders to secure the right to return to the property
* Orders to prevent the Respondent from returning to the property
Occupation orders: Step 1
in the process:
The A must be associated with R
s.62 FLA 1996
Occupation Orders: step 2
in the process:
which section governs my client’s situation?
this determines what criteria will be applied by the court?
Occupation Orders:
Apply under correct section as determined by:
1. whether applicant is entitled to occupy the property ; and
2.Their relationship with the respondent.
Step 3: Occupation order
Is or was
The actual or intended home
of the applicant and respondent
s.33
Only the applicant needs to be entitled
- Beneficial interest - joint owners
-Contractual right - Tenancy agreement
-Statutory right
-Home right s.33(1)(a)(ii)
s.33 (7) Mandatory to make an order where:
-A/ Child is at risk of significant harm if an order is NOT made.
-Respondent cannot show that s/he will suffer greater harm if order is made,
Chalmers v Johns (1999)
Thorpe LJ “So it seems to me that in approaching its function under this section, the court has first to consider whether the evidence establishes that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made. If the court answers that question in the affirmative, then it knows that it must make the order unless balancing one harm against the other, the harm to the respondent or the child is likely to be as great. If, however, the court answers the question in the negative, then it enters the discretionary regime provided by sub-s (6) and must exercise a broad discretion having regard to all the circumstances of the case, particularly those factors set out in the statutory check list within paras (a)–(d) inclusive”.
Balance of Harm s.33(7)
Summary: if significant harm cannot be shown by A or greater harm can be shown by R, court has a power but not a duty to make order. It will consider whether or not to do so under s.33(6)
Health - mental & physical – s.63 ◼ Make it clear in the statement
Duration of order under s.33
◼ for specified period or until further
order
Without Notice or On Notice?
Without notice Orders
◼ If “just and convenient”
◼ Court must have regard to S.45(2)
◼ Without notice occupation orders unusual but available
◼ Statement must explain why without notice order sought
On Notice - less urgent - usually only 2 days notice required
Enforcement
Breach of a NMO is a criminal offence
Breach of OO without POA - apply for committal of a Respondent then arrest
Breach of OO with POA with Immediate police arrest
Undertakings
-Promises to the court enforceable by way of committal
-Rules re NMO
-Rules re OO s.46(3)
Procedure
Issue in the Family Court
Refer to FPR 10
Application FL401 & witness statement Personal service (FPR 10.6)
Service on A’s police station (FPR 10.10) Notify mortgagee/LL (FPR 10.3 and 10.6)
In the Manchester Family Court
BETWEEN
on the right hand side:
Applicant
T. Jones
First
20.03.xx
Case No.
, Tracey Jones, part-time teaching assistant, of 12 Huntington Road, Bournemouth, BH2 8TB, will say as follows:
1. IamtheApplicant.Imakethisstatementinsupportofmy application for a non molestation order and an occupation order. The Respondent and I were married on 7 July 2009. We have no children. I am 39 years old and a part time teaching assistant and the Respondent is 42 years old and an accountant.
2. The contents of this statement are true to the best of my knowledge and belief. Where I give evidence of matters of which I have been told by others those matters are true to the best of my knowledge and belief and the source of the information appears.
