Domestic Violence

Question 1

Decided a molestation order was needed in the name of the daughter. Upheld in CoA even though the beneficiary i.e. T knew nothing of the molestation.
There doesn’t need to be direct contact with the children

Answer 1

Re T (a child) [2017] - T was 6 months old when she was removed from her parents and placed with foster parents. Mum didn’t accept it and stalked the foster family and was sent to prison for attempted abduction of the daughter. Years later, mother comes out of prison and stalks child outside her school and had been seen by the foster parents outside their home.
--> shows a broader approach

Question 2

Post Family Law Act 1996 - criteria for a non-mol order under s.42 FLA

Answer 2

The position post-LPA 1996 seems to be that an order can be made regardless of the respondent’s actual intent
- discretion of the court, it all depends on if the respondent is capable of understanding the order (this is why Banks v Banks was decided in such a way)

Question 3

Government guidance which has suggested introducing Domestic Abuse Protection Orders to sit alongside current orders

Answer 3

HM Government (2018) Transforming the response of domestic abuse government consultation

Question 4

Six Types of orders available

Answer 4

1. non-molestation order - to prevent the (re)occurrence of violence or other intimidation: ss.42, 42A Family Law Act 1996
2. occupation order - to require the respondent to move out of occupation of the family home or part of it, and/or to allow the applicant to return and occupy the premises alone if he/she has previously left, or to make other adjustments to the parties’ occupation: ss.30-41 Family Law Act 1996
3. Domestic Violence Protection Order (DVPO) - police may apply to magistrates for a DVPO requiring a perpetrator of domestic violence to not contact the victim or visit a specified address for between 14 and 28 days (s.28(10) CSA) –> ss. 24-33 Crime and Security Act 2010
4. Section 76 of the Serious Crime Act 2015 - created a new offence, in force from December 2015, of ‘controlling or coercive behaviour in an intimate or family relationship’.
5. orders to protect from forced marriages -ss. 63A-63S of the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007, modified by the Anti-Social Behaviour, Crime and Policing Act 2014.
6. Domestic Abuse Protection Orders (DAPO) - from the 2018 Government Consultation

Question 5

Controversial case which held that the court will repeal an order made under the Protection from Harassment Act 1997 if the victim is willing to tolerate the situation

Answer 5

R v Wayne Herrington [2017] - Man sent to prison for violently attacking his partner, 36 convictions for 97 offences. ‘violent and unruly man’. He had been convicted and was about to be released for his 2nd sentence and applied for the removal of his restraining order.But his ex had forgiven him and she was taking him back. So if the victim is prepared to tolerate the situation then the law doesn’t have a role and so the order was removed on appeal.

Question 6

What empowers the court to help your client under the protection from harassment act 1997?

Answer 6

a harassing course of conduct under s.7(3) PFHA 1997

- needs to be at least 2 occasions and have to be causally linked - Law v DPP [2000]

Question 7

What empowers the court to help your client under the Family Law Act 1996?

Answer 7

has to be an associated person with the respondent - s.42(1)(a) FLA
- defined in s.62(3) FLA

Question 8

Extra legislation on domestic violence, definitions of the offence and the victims’ code

Answer 8

Domestic Violence, Crime and Victims Act 2004 (p496)

Question 9

Who has s.30 FLA 1996 “home rights”?

Answer 9

1. legal owner of the family home – or tenant/lessee of the rented accommodation
2. married people/civil partners who don’t have their name on the lease or mortgage  showing it isn’t a right in land law

Question 10

definition of a home for the purposes of occupation orders

Answer 10

s.30(7) FLA 1996

Question 11

Two main cases which clarify aspects of the balance of harm test for s.33 FLA occupation orders

Answer 11

1. G v G (Occupation Order: Conduct) [2000] - unintentional conduct counts, not about the fault but the effect on other people
2. Chalmers v Johns [1999] - definition of significant for s.33(7)

Question 12

Developed the definition for “significant” within s.33(7) FLA

Answer 12

Chalmers v Johns [1999] - “considerable, noteworthy, or important”
Couple that were unmarried joint tenant who lives in the property. They had 2 children and long standing with police as a couple that were volatile but never any very serious violence against each other.On appeal – overturned this – Thorpe LJ said that it was minor violence, the level of violence wasn’t significant in facts and there was a higher bar to satisfy to use s.33(7). So female applicant stayed in local provided housing

Question 13

New Act which isn’t into force yet but will make it so that when a victim of domestic violence is rehoused they do not lose their lifetime tenancy

Answer 13

Secure Tenancies (Victims of Domestic Abuse) Act 2018 
when the council rehouses someone using their powers, if in their old house they left for domestic violence, if that was a lifetime tenancy then they can only be offered an equivalent tenancy in their new home.
-	So they don’t lose their security to not be kicked out etc. 
-	Shouldn’t lose it simply for being a victim of domestic violence 
-	This act isn’t in force yet though