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Family Law > Domestic Abuse > Flashcards

Domestic Abuse Flashcards

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1
Q

What are the 2 big problems of domestic abuse?

A

Affects everybody

Huge cost implications to society

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2
Q

Why is it difficult to detect?

A

People are reluctant to report for fear or repercussion

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3
Q

How may children be affected by domestic abuse?

A

May witness it or be abused themselves.

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4
Q

How may domestic abuse affect older people?

A

Often dependant on their abuser for support so are reluctant to report it. It can cover financial, emotional and physical abuse and neglect.

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5
Q

How may people with disabilities be affected by domestic abuse?

A

Suffer in a similar way and for similar reasons to older people.

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6
Q

How may sex workers be affected by domestic abuse?

A

May have vulnerable backgrounds. They may be reliant upon their abuser and may be reluctant to report abuse.

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7
Q

How may same sex couples be affected by domestic abuse?

A

They may be less likely to report in case of their sexuality being revealed.

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8
Q

What are the three most common reasons for domestic abuse?

A
  1. Psychopathological
  2. Feminist Explanation
  3. Family Relationship
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9
Q

What happened in the case of Lomas v Parle [2013]?

A

Mental illness can be a reason for domestic violence

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10
Q

What happened in Borkowski [1983]?

A

Frustration or stress could have caused domestic abuse

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11
Q

What was established in Pizzet and Shapiro [1982]?

A

Being ‘machoistic and addicted to violence’

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12
Q

Why is psychopathological a reason for domestic abuse?

A

A person may not be able to deal with anger and conflict

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13
Q

What else could contribute towards domestic violence?

A

Drugs

Alcohol

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14
Q

What is the feminist explanation for domestic abuse?

A

Based on the traditional roles - man as the dominant and women as the submissive. Society perpetuates this.

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15
Q

What was established in Dobash and Dobash?

A

Violent men are endorsing this type of violent (sexist domestic violence)

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16
Q

What other type of killing could be classed as domestic abuse?

A

Honour killing

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17
Q

Why is the family relationship a reason for domestic violence?

A

May be due to poor communication and volatile relationships leading to abuse

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18
Q

What Human Rights are relevant to domestic abuse?

A

Articles 2, 3, 6, 8 and Article 1 of the first Protocol Relevant

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19
Q

What is gender based violence?

A

Held to be a form of discrimination for the first time

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20
Q

What were the facts in Opuz v Turkey?

A

Husband violent to wife and mother for several years. Eventually he killed his mother and threatened to kill his wife and her new partner. Police action was inadequate. Wife claimed violation of Articles 2, 3 and 14 as the Turkish police had failed to protect her and her mother and was discriminatory toward women. She was successful.

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21
Q

What was the rule of thumb when it came to domestic abuse in the 1700s?

A

A husband could not be found guilty of raping his wife but only permitted to beat her with a stick no wider than a thumb.

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22
Q

What did the Matrimonial Causes Act 1878 introduce?

A

The wife of a man convicted of aggravated assault against her could get a separation order and custody of the children.

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23
Q

What was the first step to protect women in violent relationships?

A

Womens refuges set up by Erin Pizzey

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24
Q

Why did the Law Commission say that reform was necessary?

A
  1. Orders were too difficult to obtain
  2. No protection for cohabitants
  3. The law was ‘a hotchpotch’ which needed rationalising
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25
Q

What were the facts in Richards v Richards [1984]?

A

Wife had several affairs and had left family home on several occasions. Husband had forgiven her and she had moved back in. Eventually she moved out permanently and took the children. He was able to keep the children and as the interest of the children were not paramount.

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26
Q

What did the Law Commission report lead to?

A

The Family Homes and Domestic Violence Bill 1995

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27
Q

Why did the Family Homes and Domestic Violence Bill not pass?

A

It did not receive the Royal Assent due to criticism by some newspapers and some Tories saying it would undermine marriage

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28
Q

What other legislation is in place to protect people from domestic abuse?

A

Protection from Harassment Act 1997
Domestic Violence Crime and Victims Act 2004
Forced Marriage (Civil Protection) Act 2007
s76 Serious Crime Act 2015

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29
Q

What have police forces done to prevent and solve domestic violence?

A

Set up domestic violence units and officers are specially trained to deal with situation

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30
Q

What are criticisms of the Matrimonial Causes Act 1978?

A

Only applied to married couples
Violence confined to physical violence
No remedies for foster children

31
Q

What are the criticisms of the Matrimonial Causes Act 1983?

A

Applied to cohabitees and spouses but not divorcees or former cohabitants

32
Q

What protection is there to protect cohabitees from domestic abuse?

A

Family Law Act 1996

33
Q

What does s41 of the Family Law Act state?

A

The court must consider that cohabitees not given each other the commitment involved in marriage

34
Q

What does s36(6)(e) of the Family Law Act state?

A

The court must look at the nature of the parties relationship and the level of commitment involved

35
Q

What did the Protection from Harassment Act 1997 implement?

A

Dealt with the problem of stalking but extended to cover obsessive behaviour where victim was put in far

36
Q

What did the Domestic Violence, Crime and Victims Act 2004 implement?

A

Bridged the gap between civil and criminal remedies available to the victim

37
Q

What was the percentage of incidents reported as investigated by the Joint Inspectorate of Police and CPS in 2004?

A

25% of incidents are reported

38
Q

What are reasons for the low reporting numbers?

A
  1. Victims refused to make statement or withdrew allegation
  2. CPS dropped the case
  3. 75% pleaded guilty but there was a high acquittal rate for those who didn’t
39
Q

What was said in the case of R v McNaughten [2003]?

A

This case criticised the leniency of the courts. It said that it is no less important because the offence happened in a domestic environment

40
Q

What are the signs of improvement?

A 
Increased specialist courts
Forced marriage laws 
72% of prosecutions are successful 
Men's helpline 
Multi agency approach 
Domestic Violence Disclosure Scheme introduced - Clare's Law
41
Q

What are the two reasons domestic violence is under reported?

A

Failure to attend court

Retraction of evidence

42
Q

Is there an offence for domestic violence?

A

No there is not a specific defence for domestic violence however it can be covered under many other laws.

43
Q

What offence is defined in s76 Serious Crime Act 2015

A

Offence of Coercive and Controlling Behaviour

44
Q

What are the requirements to satisfy s76 Serious Crime Act 2015?

A

Must be continuous or repeated controlling behaviour towards a person who is connected to the offender
Must cause fear on at least two occasions that violence would be used or it causes them alarm or distress and has substantial adverse affect on their day to day activities

45
Q

Who is covered under s76 Serious Crime Act 2015?

A

Those in an intimate relationship, those who live together and are members of the same family or those who have previously been intimate
Does not include under 16 year olds where the person in question has control over them

46
Q

Is there a defence for s76 Serious Crime Act 2015?

A

The person was acting in the other person’s best interests

47
Q

Where is the offence of assault found within legislation?

A

Offences Against the Person Act 1861

48
Q

Where is psychiatric injury found within legislation?

A

s20 Offences Against the Person Act 1861

49
Q

What is a case supporting the s20 OAP 1861?

A

R v Ireland and Burstow (1998)

50
Q

What was found in the case of R v R (Rape: Marital Exemption) [1992]?

A

Husband can be convicted of raping wife

51
Q

What are the defences under s4 Protection From Harassment Act 1997?

A

If the course of conduct is for the purpose of preventing or detecting crime
If the course of conduct was pursued for the purpose of any enactment or rule of law
The course of conduct was reasonable to protect himself or another on their property

52
Q

Under what legislation can a restraining order be made?

A

Following a conviction under s2/s4 of the PFHA 1997

53
Q

What did the Domestic Violence Crime and Victims Act 2004 change regarding restraining orders?

A

They can now be made even if the defendant has been acquitted

54
Q

What affect does the DVCVA 2004 have on the Family Law Act?

A

Extends the law to include same sex couples and partners who have not lived together
Removes the power of arrest for non-molestation
Makes breach of non-molestation order a criminal offence

55
Q

What are the advantages of the changes that the DVCVA made?

A

Woman does not need to take action
A stronger sanction
Costs

56
Q

What are the disadvantages of the changes that the DVCVA made?

A

Out of the woman’s control
Criminalises her partner
Breaches of both occupation and non-molestation orders will mean two separate court appearances
Open to the public

57
Q

What is the legislation relating to domestic violence under civil law?

A

Family Law Act 1996 - Part IV

58
Q

What are the two types of order provided by the Family Law Act 1996?

A

Occupation

Non-molestation

59
Q

What are the two types of applicants under the Family Law Act 1996?

A

Entitled and Non-entitled

60
Q

What is an entitled applicant?

A

Entitled to occupy the family home

61
Q

What is an un-entitled applicant?

A

Not entitled to occupy, but have some rights under the Act

62
Q

Who can apply for an occupation order?

A

Only entitled and non-entitled applicants

63
Q

What is a non-molestation order?

A

Order that one party does not molest the other party

64
Q

Who can get a non-molestation order?

A

Any ‘associated persons’

65
Q

What is an ‘associated person’?

A

Current or former spouses or civil partners
Cohabitants or former cohabitants
Have lived in the same household but not as an employee, tenant, lodger or border
Relatives (only immediate relatives)

66
Q

What do the courts use to determine whether they are an associated person?

A 
Stable relationship
Members of the same household 
Sexual relationship
Children
Joint bank account
67
Q

What is a child applicant?

A

A child under 16 can apply for either order with leave however they must have sufficient understanding

68
Q

What are the two types of occupation orders that can issued?

A

Declaratory

Regulatory

69
Q

What is a declaratory occupation order?

A

Courts declare a person is entitled to occupy

70
Q

What is a regulatory occupation order?

A

They regulate the occupation of the family home

71
Q

What are the grounds for making an order?

A

The housing needs and resources of the party
Financial recourses
Effect of the order on the health, safety and well-being of any relevant child
Conduct of the parties in relation to each other

72
Q

What is the Balance of Harm Test?

A

Assess whether an applicant or relevant child is likely to suffer harm because of the respondent’s conduct if an order is not made?

73
Q

What is harm defined as?

A

Ill treatment and the impairment of health - includes emotional health

74
Q

What are undertakings?

A

A promise to the court instead of an occupation or non-molestation order

Family Law (5 decks)

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