Domestic violence

Question 1

What was the coalition gov def of da

Answer 1

‘Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
´ psychological
´ physical
´ sexual
´ financial
´ emotional
Controlling behaviour is: 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 their victim.
Included honour based violence, female genital mutilation and forced marriage.

Question 2

In 2020 how many adults experienced DV

Answer 2

1.6 mil women, 757k men

Question 3

What is partner abuse

Answer 3

subsection of DV and includes non sexual offences/sexual/stalking

Question 4

What is domestic homicide

Answer 4

Defined as murder or mansalugher and v over 16, and D is spouse/common law spouse/cohabiting partner/boyf or gf/sex/child/parent/relative

Question 5

What does the legal aid, sentencing, punishment of offender act 2012 define as DV

Answer 5

´ Schedule 1, Part 1, Para 12
´ (9) “domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.
´ Recognises that domestic violence is best understood as a pattern of behaviour, rather than a single incident, or physical incident.
´ Remember the Coalition Government definition, and controlling and coercive behaviour.

Question 6

What does the new DA act 2021 do

Answer 6

´ Aims to improve the protection of victims and bring perpetrators to justice.
´ Aims to strengthen support for victims through statutory agencies.
´ Creates a statutory definition of domestic abuse, which emphases that it is not just physical violence.
´ Establishes the office of the Domestic Abuse Commission.
´ Provides for a new Domestic Abuse protection notice and Domestic Abuse Protection Order.
´ Sections 1-2 fully in force from 1 October 2021.
´ Section 3 in force from 31 January 2022.
´ Domestic Abuse Commission from 1 November 2021.
´ DAPN/DAPO from early 2023.

Question 7

What is the definition of DA in the new DDA 2021

Answer 7

(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.
(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.
(5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).
(6) References in this Act to being abusive towards another person are to be read in accordance with this section.
(7) For the meaning of “personally connected”, see section 2.

Question 8

What does personally connected mean as of s2 dda 2021

Answer 8

(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.
(3)In this section—
“child” means a person under the age of 18 years;
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“parental responsibility” has the same meaning as in the Children Act 1989 (see section 3 of that Act);
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.

Question 9

What does s3 of DDA say about kids as victims of DA

Answer 9

(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.
(4)In this section—
“child” means a person under the age of 18 years;
“parental responsibility” has the same meaning as in the Children Act 1989 (see section 3 of that Act);
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.

Question 10

What are the two criteria for determining a relationship

Answer 10

16+ and personally connected

Question 11

What is economic abuse

Answer 11

´ Economic abuse involves behaviours that interfere with an individual’s ability to acquire, use and maintain economic resources such as money, transportation and utilities. It can be controlling or coercive. It can make the individual economically dependent on the abuser, thereby limiting their ability to escape and access safety.
´ Examples of economic abuse include:
´ having sole control of the family income;
´ preventing a victim from claiming welfare benefits;
´ interfering with a victim’s education, training, or employment;
´ not allowing or controlling a victim’s access to mobile phone/transport/utilities/food;
´ damage to a victim’s property

Question 12

What is a personal relationship

Answer 12

Defines people who are ‘personally connected’ as: intimate partners, ex-partners, family members or individuals who share parental responsibility for a child. There is no requirement for the victim and perpetrator to live in the same household

Question 13

What orders exist against DA

Answer 13

Non molestation s42 FLA/Occupation Orders

Question 14

What is a non molestation order

Answer 14

An order that one party does not molest the other.
Molestation is not defined in the Act.
Molestation includes any conduct that will harass or threaten the victim.
Conduct that is more than an invasion of privacy.
Provided that is against a person who is associated.

Question 15

What does s42 FLA say about non molestation orders

Answer 15

(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.
(3)In subsection (2) “family proceedings” includes proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).
(4)Where an agreement to marry is terminated, no application under subsection (2)(a) may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.
(4A)A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b).
(4B)In this Part “the applicant”, in relation to a non-molestation order, includes (where the context permits) the person for whose benefit such an order would be or is made in exercise of the power conferred by subsection (2)(b).
(4ZA)If a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) is terminated, no application under this section may be made by virtue of section 62(3)(eza) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.
(5)In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being—
(a)of the applicant . . . ; and
(b)of any relevant child.
(6)A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.
(7)A non-molestation order may be made for a specified period or until further order.
(8)A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed.

Question 16

Who are associated people for non molestation orders

Answer 16

´ Married or were or agreed to be (proof s44).
´ Civil partners or were or agreed to (proof s44).
´ Cohabitants or were.
´ Intimate relationship of ‘significant duration’.
´ Live in same household (not lodger, tenant employer/ee or boarder).
´ Relatives.
´ Applicant is a child, or a person who has PR for a child.
´ A party to the same family proceedings.

Question 17

Define associated persons s62 FLA 1996

Answer 17

(3) For the purposes of this Part, a person is associated with another person if—
(a) they are or have been married to each other;
(aa) they are or have been civil partners of each other;
(b) they are cohabitants or former cohabitants;
(c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
(d) they are relatives;
(e) they have agreed to marry one another (whether or not that agreement has been terminated);
(ea) they have or have had an intimate personal relationship with each other which is or was of significant duration;
(eza) they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);
(f) in relation to any child, they are both persons falling within subsection (4); or
(g) they are parties to the same family proceedings (other than proceedings under this Part).

Question 18

Define cohabitants as AP

Answer 18

´ S62(1)(a) cohabitants are two persons who are neither married to each other nor civil partners of each other, but are living together as husband and wife or as if they were civil partners.

Question 19

Define intimate relationships as AP

Answer 19

´ Difficult to define.
´ They have or have had an intimate personal relationship with each other which is or was of a significant duration.
´ Inserted by: Domestic Violence, Crime and Victims Act 2004.
´ Because previously, couples who were in relationships but not actually cohabiting or were not engaged could not apply for non-molestation orders as they were not associated people.

Question 20

How are associated persons decided

Answer 20

´ They live or have lived in the same household, otherwise than merely by reason of one of them being the others employee, tenants, lodger or boarder.
´ This category includes many people living together and would cover, for example, students living together in a student house; or to elderly people sharing accommodation companionably. A sexual relationship is not required.
´ Tenants etc may be associated if they are lovers
´ A child may claim to be associated with the parents and therefore entitled to apply for a non-molestation order s 43(2) if court satisfied that child has sufficient understanding
´ (Re Alwyn (non-molestation proceedings by a child) [2010]

Question 21

Give the names of cases that are good examples of non molesation orders

Answer 21

Vaughn 1973/Spencer 1984/Horner 1982/C v C 1998

Question 22

Can a child apply for an order

Answer 22

Yes s43 FLA 1996 BUT only if court satisfied they have the understanding

Question 23

What are the grounds for a non molestation order s42 5 FLA 1996

Answer 23

´ In deciding whether to exercise its power under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being-
´ (a) of the applicant or, in a case falling within subsection (two) (B), the persons whose benefit the other would be made; and
´ (b) of any relevant child

Question 24

How long is a non molestation order

Answer 24

s42 FLA 1996- specified period until further order made

Question 25

How is a non molestation order enforced

Answer 25

´ S 42A FLA 1996 (inserted by the Domestic Violence, Crime and Victims Act 2004)
´ States that it is a criminal offence for a person to do something he is prohibited from doing by a non-molestation order without reasonable excuse.
´ Police can arrest under Police, Criminal Evidence Act 1984
´ If no other proceedings, claimant can seek to enforce the order as a Contempt of Court and apply to court for a warrant of arrest s 47(8) FLA.

Question 26

What is an occupation order

Answer 26

´ Can remove an abuser from the home, and can give the victim a right to remain in the home
´ Relevant sections: 33, 35, 36, 37, 38 FLA 1996.
´ Requires a ‘significant harm’ test (section 33(7)).
´ Applicant must be entitled.

Question 27

Who is an entitled applicant under s33 FLA 1996 with OO

Answer 27

´ (1) a person who is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation; or
´ (2) has home rights in relation to a dwelling house.
´ Remember your property law: all spouses and civil partners normally have at least a beneficial interest in their home and will therefore be ‘entitled’
´ Cohabitees however, will need to demonstrate that they have an interest in the property by way of a Trust (see earlier lectures on cohabitees).

Question 28

What is the significant harm test s33 8 FLA 1996

Answer 28

´ Question 1: will the applicant or relevant child, suffer significant harm attributable to the conduct of the respondent if an order is not made? No- court wont need to grant order. Yes- must consider needs of child and adult (Re L 2012), compare harms if order made vs not made
´ Question 2: will the respondent or the relevant child suffer significant harm if the order is made?

Question 29

What happens if significant harm isn’t satisfied

Answer 29

´ General factors consideration may lead to an order still.
´ S 33(6) and Chalmers v John (1999) – no sig harm and property rights
´ Housing needs and resources of both parties and any relevant child.
´ Financial resources of both parties.
´ Likely effect of any order or decision by court; likely effect of any order not to exercise powers on the health safety or well being of any parties and of any relevant child.
´ Conduct of the parties in relation to each other.
´ Significant harm caused by the respondent at least in part.
´ Does not have to have domestic violence before a court makes the occupation order (PF v CF 2016)

Question 30

What happens when an applicant has no occupying right

Answer 30

´ An ex-spouse, or ex civil partner who has no right to occupy s 35
´ As for s 33 grounds plus: s 35(6) criteria e.g.
´ How long since the relationship was dissolved?
´ Cohabitee or ex cohabitee S 36
´ No significant harm test satisfied?
´ But, court must consider whether significant harm will occur, to applicant without the order, and what the harms will be to the respondent.
´ Cohabitant: s 62(1) (a) FLA 1996: Two persons who, although not married to each other, are living together as husband and wife or (if of the same sex) in an equivalent relationship.

Question 31

When are civil injunctions under the Protection from Harassment Act 1997 granted

Answer 31

´ Possible to obtain an injunction to:
´ Restrain a respondent from harassing the applicant (victim).
´ May also provide compensation.
´ Provides a means to obtain a restraining order PHA (s 5).
´ Originally for deterring stalkers; Protection of Freedoms Act 2012 amends the 1997 Act in relation to stalkers.
´ Used also for those who are not associated.

Question 32

Explain s1 PHA 1997

Answer 32

´ (1) A person must not pursue a course of conduct
´ (a) which amounts to harassment of another, and
´ (b) which he knows or ought to know amounts to harassment of the other.
´ Must have a course of conduct, see Lau v DPP [2000].
´ At least two incidents s 7(3)(a) PHA 1997.

Question 33

What is the offence of harassment under s2 PHA 1997

Answer 33

´ (1)A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.
´ (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

Question 34

What is a DAPN and DAPO

Answer 34

´ DAPN aims to provide immediate protection following a domestic abuse incident.
´ DAPO aims to provide flexible, longer term protection for victims.

Question 35

What does a DAPO have the power to use

Answer 35

´ Power to use electronic tagging.
´ Notification requirements.
´ Breach will be a criminal offence, or civil contempt of court.

Question 36

What are the criminal proceedings related to DV

Answer 36

´ S76 Serious Crime Act 2015.
´ S27 Crime and Security Act 2010.
´ Forced Marriage (Civil Protection) Act 2007.
´ Adds s63A to FLA 1996 to give family court the powers to make injunctions to protect from forced marriages.

Question 37

What is controlling or coercive behaviour s76 serious crime act 2015

Answer 37

´ Controlling or coercive behaviour in an intimate family relationship
´ (a) Where a person (A) repeatedly or continuously engages in behaviour toward another person (B) that is controlling or coercive
´ (b) At the time A and B are personally connected
´ (c) the behaviour has a serious effect on (b)
´ (d) A knows or ought to know that the behaviour will have a serious effect on B

Question 38

What are some wider issues around DV

Answer 38

Wider issues-

Safety of private space- Giddens 1989, home the most dangerous place
State responsibility- don’t want to press charges then can be respcted (Hoyle v Sanders 2000)
Sometimes proceed with serious violence- Opuz v Turkey 2009

´ Turkey was held to have violated Art 2, 3, 14 ECHR by failing to protect the claimant and her mother, from her violent husband. The mother was eventually killed. The Turkish authorities claimed the murder was an honour crime, and this the woman claimed amounted to gender discrimination.

Question 39

What is Carol Smart’s view on feminism and DV

Answer 39

patriarchal domination of the language procedures and personnel of the legal process’
´ Means DV against women won’t ever disappear, because of course it is already invisible.
´ Consequences of DV can be homicide trials
´ But outcomes may again depend upon the way women are viewed by the CJS:
´ 1. DV goes unreported and ignored for years
´ 2. DV may lead to homicide and allegations that the woman is ‘inadequate, irrational, or, even, inviting violence’. (Orr)
´ 3. Need for early protections NMO and O/O etc.

Question 40

What is battered women syndrome

Answer 40

´ The theory of BWS developed by Walker identified that women experiencing both arbitrary and unescapable violence developed common characteristics, such as low self-esteem, self-blame for the violence, anxiety, depression, fear, general suspiciousness, and the belief that only they can change their predicament’.
´ Expert evidence therefore of serious psychological harm, if put before a jury could help explain why abused women did not walk away from an abusive relationship and why a seemingly small event could trigger a delayed violent reaction.

Question 41

How can BWS be used as evidence in court

Answer 41

´ Women may have reacted to long term domestic abuse; i.e. differently to the stereotypical, masculine reaction characterised by the defence of provocation as defined in Duffy and s3 Homicide Act.
´ The common law definition of provocation per Duffy was incorporated into s3 Homicide Act 1957 as a) things done or said provoked the accused, b) the accused suffered a sudden and temporary loss of control c) the provocation was enough to make a reasonable person do as the accused had done and
´ Questions of reasonableness/ proportionality of the response for the jury, was abolished and replaced by loss of control partial defence in ss 54-56 Coroners and Justice Act 2009.

Question 42

What are some issues with the idea of BWS

Answer 42

• gender biased
• her syndrome rather than his problem
• abstract model of how a BW may act

Question 43

What is parental alienation syndrome

Answer 43

´ Very controversial
´ Difficult in fact to establish;
´ The resident parent turns against the non-resident parent
´ Arguably turns the child against the non resident parent
´ Leads possibly to child rejecting contact with non resident parent
´ Courts are considering that rejection by a child, must mean that the mother shows PAS, and the child’s views should therefore be ignored.

Question 44

How do courts address PAS

Answer 44

´ Just concentrate on the facts.
´ There is a danger that courts will not believe or acknowledge that domestic abuse seen by preverbal children, can affect their willing ness to live with either parent, and the courts do not believe that DA is an issue.
´ But teenagers have strong views as do courts and (See Munby in Re H-B), courts may consider that the teenager is merely ‘fractious and rebellious’ because they do not want contact with a parent, and should therefore be disciplined/grounded until they accept contact!