Domestic Violence COPY

Question 1

How many orders can the Family Law Act 1996 provide for?

Answer 1

Non - molestation

Occupation orders

Question 2

What type of people do the FLA 1996 protect?

Answer 2

Associated persons

Question 3

Where is the non molestation section

Answer 3

Section 42

Question 4

Where is the occupation order section

Answer 4

Section 33 - 38

Question 5

Where is Molestation order defined?

Answer 5

Section 42(1)

molestation order as an order “prohibiting a person (`the respondent’) from molesting another person who is associated with the respondent, and (b) prohibiting the respondent from molesting a relevant child”.

Question 6

What can the molestation order do?

Answer 6

Section 42(6) 
A non molestation order may refer to molestation in general or to particular acts of molestation or both.

Question 7

Vaughan v Vaughan [1973]

Answer 7

Couple split up and like Mr Vaughan hung round the house/office, not being threatening but she was scared, he was just being a pest, this is molestation, this is broad enough.

Judge Stephenson said that molestation included “pester”.

Question 8

What did Judge Stephenson say in Vaughan v Vaughan

Answer 8

Judge Stephenson said that molestation included “pester”.

Question 9

Horner v Horner [1982]

Answer 9

Ormrod L.J. said that the molestation covers “any conduct which could be properly regarded as to call for the intervention of the court”.

does not imply necessarily either violence or threats of violence.

Ms Horner was a school teacher, she kicked her husband out and his response was to phone the school repeatedly and attach posters about his wife to the school railings, there was no violence or even threats of violence. There was no doubt that this was molestation.

Question 10

Johnson v Walton [1990] CA

pre 1996 act (what is the jurisdiction now)

Answer 10

Husband sent wife holiday pictures to newspaper. Molestation even where there is no direct contact.
Held: if done with intent to distress applicant this was clearly molestation. Intent to distress.

Question 11

Wooton v Wooton [1984]

pre 1996 act what is jurisdiction now

Answer 11

elderly couple, Ms Wooten suffered from epilepsy and would attack her husband, a non-molestation order was granted to stop this from happening.

Held: Intention is not required in cases of physical violence

Question 12

Is there ambiguity as to whether intent is required?

Answer 12

pre 1996 act
Johnson v Walton [1990] - Intention is required

Wooton v Wooton [1984] - says intention is not required for non molestation order (GRANTED)

post 1996 act
Judge Stephen C v C (Non-Molestation Order: Jurisdiction) (1998) - Intention is required for non molestation order

Bank v Banks (1999) - order not granted because it would have no |practical purpiose” because she did not know she she was doing

criteria for making a non mol order are deliberately focused on the effect of the conduct on the victim as opposed to the natyre

Question 13

Section 42(5)

Answer 13

when deciding whether to grant an order or not “shall have regard to all the circumstances including the need to secure the health, safety and well-being-

Safety and well-being are not defined in the Act but “health” is defined in s.63(1) to include physical or mental health.

Question 14

C v C (Non-Molestation Order: Jurisdiction) [1998]

Answer 14

In this case a wife had given information to a newspaper about her husband’s behaviour.

Held: not molestation, it comes “no where near molestation” from the act.
This almost goes against Johnson v Walton.

Judge Stephen said molestation “It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court”

Question 15

Which judges said molestation has to be deliberate?

Answer 15

Judge Stephen C v C (Non-Molestation Order: Jurisdiction)

Wooton v Wooton [1984]

Question 16

Banks v Banks [1999] 1 FLR 726 (county court)

Answer 16

ZERO PRECEDENT VALUE

elderly couple, wife had various health problems including dementia, when she was home she would spontaneously attack her husband. Husband applied for non-molestation order. Held: not granted because wife could not prevent her condition. This goes against Wooton v Wooton, so there is some sort of mens rea involved.

order not granted because it would have no |practical purpiose” because she did not know she she was doing

Therefore, wgen dealing with a respondent whose actions are caused by a medical condition which impairs his judgment the fact the abuse may be unintentional will not prevent the court from making an order. But if the respondents condition affects his ability to understand the nature of the order, the court may refuse to grant the order on the ground that it will serve no useful ppurpose.

Question 17

Chechi v Bashier [1999] 2 FLR 489

Answer 17

Involved two brothers, they had a family business and was in dispute with themselves about ownership of a certain piece of land, one brother became violent. Brother who was attacked was granted a non-molestation order. At the hearing, the judge refused to make a non-molestation order because the non-molestation order is for a family act, but in this case it is more commercial. COA held: you could get a non-molestation order because there was some “familiar element”, there is also a commercial element. However, in the end, the court did not give the molestation order because they were as bad as each other. Therefore, even when you can make an order, it might make things worse, so like in this case, you can make the two parties promise, there was a cross undertaking which can be enforceable, but doesn’t hold either party liable.

THE COURTT could have made a non mol but under s47(2) where there has been violence or threatened violence the court is mandated to attach a power of arrest, the court felt that this would give too much power to the petitioner.

Question 18

Where is molestation defined?

Answer 18

It is undefined as the law Commission recommended in 1992.

Implicit in section 42(5) that molestation may prejudice the health, safety and well being of victims

Question 19

If molestation is found does the court have discretion?

Answer 19

Yes

Question 20

Associated person section

Answer 20

Section 62(3) defines associated person.

You have to be an associated person to apply for a non molestation order.

Question 21

Where is “relevant child” defined?

Answer 21

Under section 62(2)

Question 22

can a child apply for a non mol order?

Answer 22

Yes no age limit

Question 23

How can a child apply for a non mol?

Answer 23

A child under the age of 16 needs the lead of the court (section 63(1)).

In section 43(2), leave cannot be granted unless the child has sufficient understanding to make the proposed application (this is reference to the Gillick competency)

An adult may make an application for the ‘relevant child’, defined in section 62(2)(a) a child who lives with or reasonably expected to live with the applicant or respondent. 62(2)(b)

Question 24

Section 60

Answer 24

allows for a third party to make an application on behalf of those who are thought to be molested. Although never been brought into force.

Question 25

Legal definition of ‘cohabitants’ section

Answer 25

Section 62(1)(a) of the 1996 Act

Question 26

Legal definition of ‘relatives’ section meaning

Answer 26

Section 63(1)

Question 27

Gillick competence requirements

Answer 27

1) the young person will understand the professional’s advice;
2) the young person cannot be persuaded to inform their parents;
3) the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
4) unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer;
5) the young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent.

Question 28

Section 60

Answer 28

Section 60 of the Act potentially allows both non-molestation orders and occupation orders to be made on the application of a third party.

Question 29

G v F (Non-Molestation Order: Jurisdiction) [2000]

LEADING CASE

Answer 29

Unmarried couple had their own flats but evidence showed that they lived together and spent nights together.
While every associated person on that list can attain a non molestation order only certain people can get occupation orders, since there had been a sexual relationship between the parties and there was evidence that they lived in the same household part of the time and operated a joint bank account, there was sufficient evidence to demonstrate that they had been cohabitants within section 62(3)(b) of the Act of 1996 and therefore “associated persons” for the purpose of section 42;

Wall J said that “where domestic violence is concerned [judges] should give the statute a purposive construction”.

Law Commission stated that the trend in family law is providing protection from harm rather than punishment. Thus intentional behaviour does not matter.

THEREFORE COURTS WILL BE GENEROUS WITH INTERPRETATIONS OF PEOPLES LIKE INTIMATE COUPLES.

Question 30

Can non-cohabiting but intimate relationships obtain an order?

Answer 30

Section 62(3)(ea) yes they can.

It is not clear how ‘intimate personal relationship of Significant duration’ will be interpreted. The Explanatory Notes 2004 to the amending Act states that “it will be for the court to decide on whether the relationship meets the criteria… This covered a relationship which is intimate but which is not sexual.

Question 31

Who cannot apply for a non mol order?

Answer 31

Section 62(6) a “body corporate” cannot apply.

Question 32

When should a non mol be made?

Answer 32

Section 42(2)(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 you can go to court solely to get your order

Section 42(2)(b)) -where judge observes signs of molestation, the judge can decide to make a non molestation order, but this is rare. The idea if where a party is too scared to ask for one.

Question 33

Duration of non mol

Answer 33

S.42(7)

Question 34

M v W (Non-Molestation Order: Duration) [2000]

HC

Answer 34

The High Court said that the default of the non mol duration should be a specified period as unfair for someone to have an order to have over their head indefinitely, unless there is special circumstances.

Changed by CA in Re B-J

Question 35

Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2000] 2 FCR 599 (CA)

Answer 35

Held: M v W is wrong, it is fettering the discretion of the courts, limitation is not on place of the act, therefore still up for the court to decide if it is indefinitely or not. Here they set it for an indefinite period.

Question 36

Breach of non molestation order section

Answer 36

Section 42A section 1

1 created a criminal offence of breaching a non-molestation order. The offence says: only if you breach the order without reasonable excuse

Question 37

R v Richards EWCA

Answer 37

Husband’s non mol was not to visit ex-wife’s home or whithin 25m of the house. Husband convicted of offence under section 42A, not to visit ex’s home, defence: wife was alcoholic, concerned about his children. Held: he did have a reasonable excuse.

Question 38

R v Briscoe [2010] EWCA

Answer 38

Sentenced to 6 months for two breaches of non-molestation order, one was knocking on the door and one for leaving messages on her answering machine. COA held: he never should have been sent to prison imprisonment should be retained for cases of significant treat or harm. Before that, the court was willing to send someone to prison for minor issues.

=breach of non mol orders should not be for minor issues.

Question 39

R v N(Z) [2016] EWCA

Answer 39

Harassment needs to be an ‘oppressive’ element, not just alarming, just sending emails to husband does not constitute so conviction was quashed.

Question 40

R v R [2014] EWFC

Answer 40

A wife applied for an ex parte against husband. There wasn’t a hearing for 5 months. In these 5 months the husband had been convicted under section 42A, he contacted wife when he shouldn’t have, the court decides that the ex parte order shouldn’t have been made anyway. At the interim hearing the molestation order was quashed as shouldn’t have been made, but conviction could not have been quashed. But he had been convicted and the conviction was sound.

Question 41

Definition of domestic violence

Answer 41

Any incident or pattern of incidents of controlling, coercive, 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. The abuse can encompass but is not limited to:
• psychological
• physical
• sexual
• financial 
• emotional

Question 42

Hajduova v Slovakia,

Answer 42

Husband sent to psychiatric hospital, the hospital released him after a week, as soon as husband is free he committed serious violence against the wife. Held: breach of article 8, wasn’t protect by state.

Question 43

Definition of non-molestation order

Answer 43

order to prevent the (re)occurrence of violence or other intimidation:

Question 44

Definition of occupation order

Answer 44

order to require the respondent to move out of occupation of the family home or part of it, 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:

Question 45

Section 63A-63S FLA 1996

Answer 45

Forced marriages

Question 46

Definition of molestation

Answer 46

Section 42(1) defines molestatin

Molestation is undefined, as the Law Commission recommended in 1992. It is implicit from section 42(5) that molestation may prejudice the health, safety and well-being of victims.

Question 47

S42(6) FLA 2002

Answer 47

an order may refer to particular acts of molestation or molestation in general or both.

Question 48

D v L

COA

Answer 48

female partner recorded conversations which ex where they discussed unusual sexual activities of the man. COA held: these days you can use article 8 to prevent publication to the world in general.

Question 49

If molestation if found does the court have a discretion?

Answer 49

Yes, 
Section 42(5) lists some factors to which the court must have regard, but, as usual, it is directed to have regard to “all the circumstances”. 

Where molestation is found, the court will usually grant an order. The order may prohibit “molestation” or the use of threat of violence, harassment etc. The potentially criminal consequences of breach may now encourage courts to draft orders more tightly, to try any ambiguity. The principle objective is to protect victims whose rights under Article 3 and 8 are at stake.

Question 50

G v F (Non-Molestation order: Jurisdiction) [2000]

Answer 50

COHABITIATION Interpreted widely. = Generous approach to interpretations and application of ‘associated person’ categories.

Parties’ sexual relationship began, they had separate homes but spent most nights together. The man sold his home and deposited the proceeds into parties’ joint account and most money was spent improving the anticipated matrimonial home, he then moved in with her. But then moved out two years later withdrawing funds. Woman sought non-mol order on bases of cohabitation.

The non mol lesislation is designed to provide swift and accessible protective remedies to victims of domestic violences so wide interpretation.

THEREFORE COURTS WILL BE GENEROUS WITH INTERPRETATIONS OF PEOPLES LIKE INTIMATE COUPLES.

Wall J said that “where domestic violence is concerned [judges] should give the statute a purposive construction”.

Question 51

How is “intimate person relationship of significant duration” to be interpreted.

Answer 51

The explanatory notes to the amending act stated that:
“this covers a long-standing relationship which may, or may not be a sexual relationship but which is an intimate and personal one. It does not include long-term platonic friends or “one-night stands”.

Vulnerable adults and non-residential carers.

Question 52

Molestation defined

Answer 52

Molestation is undefined, as the law commission recommend. Implicit from s42(5) that molestation may prejudice the health, safety and well-being of victims.

Horner v Horner [1982] - neither actual nor threatened violence is necessary.

Johnson v Walton [1990] - molestation is harassment’s cousin it “includes within it an element of intent, intent to cause distress or harm”. If done with intent to distress this is molestation.

Vaughan v Vaughan [1973] - Judge Stephenson said that molestation is to “pester”

C v C (Non-Molestation Order: Jurisdiction) (1998) - Intention is required for non molestation order. Stephen Brown “some quite deliberate conduct that is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court”.

Question 53

R v Richards (Anthony) [2010] EWCA

Answer 53

Husband convicted – not to visit ex-wife’s home or whithin 25m of the house. Husband convicted of offence under section 42A, not to visit ex’s home, defence: wife was alcoholic, concerned about his children. Held: he did have a reasonable excuse.

Question 54

R v Briscoe [2010] EWCA Crim 373

Answer 54

Sentenced to 6 months for two breaches of non-molestation order, one was knocking on the door and one for leaving messages on her answering machine. COA held: he never should have been sent to prison imprisonment should be retained for cases of significant treat or harm. Before that, the court was willing to send someone to prison for minor issues.

Question 55

R v N(Z) [2016] EWCA

Answer 55

Wife was convicted of two counts of breaches of 42A, she sent emails to ex-partner that had a daughter. Dad didn’t allow daughter to see wife. She was convicted, she appealed on the terms of the non-molestation order which said the party cannot intimidate, harass or pester the other party. She argued that she was just talking to him, she was convicted because trial judge said harass included alarming the other party, they got this from the harassment act 1997. Section 7(2) of this act said that to harass the person means alarming or distressing that person, so the judge held she was convicted. COA said that harassment means something other than alarming people. There needs to be an ‘oppressive’ element, not just alarming, therefore there was a misdirection so the conviction was quashed.

Question 56

R v R [2014] EWFC

Answer 56

A wife applied for an ex parte against husband and was given legal aid. There wasn’t a hearing for 5 months. In these 5 months the husband had been convicted under section 42A, he contacted wife when he shouldn’t have, the court decides that the ex parte order shouldn’t have been made anyway. At the interim hearing the molestation order was quashed as shouldn’t have been made, but conviction could not have been quashed. But he had been convicted and the conviction was sound.

Question 57

Singh v Bhakar [2007]

Answer 57

Woman who brought action against ex mother in law. Mother in law harassed her in various ways. This confirmed that the harassment act applies to family cases. Held: in County court but never doubt that it was not correct. It was declared that you can use harassment in family cases.

Question 58

R v Widows [2011] EWCA

Answer 58

Often violence between couple. Male was convicted of harassment. In COA it was said, this act is “not normally appropriate for use as a means of ciminalising conduct, not charged as violence, during incidence in a long and persistent and affectionate relationships which both parties persisted in and wanted to. Don’t involve police or court if you do not wish to split up.

Question 59

R v Colohan [2001] EWCA

Answer 59

Man stalking his MP and writing letters to her. He was convicted of harassment, he appealed saying that it should be the characteristics of the person, but COA said it is an objective test.

s1(b) harassment act.

Question 60

Hayes v Willoughby [2013] UKSC

Answer 60

Man conducted campaign against former boss, wrote letters. Relevant authorities found that it lacked substance but the person continued writing these claims. He was charged with harassment. Held: once it was found that it lacked substance he should have stopped, to pursue it further means he was not rational.

Question 61

Law v DPP [2000]

Answer 61

held two incidences that are causally related to be a cause of conduct.

Question 62

Buckley and Smith v Director of Public Prosecutions [2008] EWHC

Answer 62

There can be a course of conduct that took place over one day. Two incidences of the same day is not one continuous act but two incidences.

Question 63

R v AJR [2013]

Answer 63

Farther had stabbed his daughter when he was insane he was not convicted of harassment, because there was only incident, i.e. one stabbing.

Question 64

S v S (1980)

Answer 64

Marriage couple, husband leaves home and tries to live with other woman, woman tried to say she had rights in house. Held: husband said no because you never intended to live together as a couple.

Question 65

P v P (Ouster: Decree Nisi of Nullity) [1994]

Answer 65

county court refused to hear application by wife for order protecting her home rights because her husband divorced her. She successfully appealed because it is the decree absolute that marks the end of the marriage, up until this point you can still use home right.

Question 66

Tarr v Tarr [1973]

Answer 66

HOL said no power without explicit wording to kick other party out of the houses so wording was changed so that it is clear that the court can make an order that the legal owner of the house is kicked out.
An order under 33(3) can be permanent or temporary under section 33(10).

Question 67

Chalmers v Johns

CA
1999

Answer 67

it was said that the court should first check whether the test is subsection 7 was met, before addressing subsection 6 factors. If the test in (7) is satisfied, the court knows it must make an order. If not, it has a broad discretion under (6). If applicant wins test, subsection (6) guides the court’s decision as to the terms and duration of the order; if the applicant loses, subsection (6) helps the court to decide whether nevertheless to make and order, and if so in what terms and for how long.

Question 68

G v G (Occupation Order: Conduct) [2000]

Answer 68

1) conduct can be unintentional but can be attributable to respondent (Black)

Wife sought occupation order. The strain between parents was found by judge to be causing significant harm to the wife and children, but was it attributable to the husband’s conduct? On appeal, it was held that unintentional conduct can constituted the attributable to the respondent. it is not about the intention but of the effect.

“Tiny wounds may be inflicted with great malice: great blows may be struck unintentionall”

Law Commission 1992a stated that the trend in family law is providing protection from harm rather than punishment. Thus intentional behaviour does not matter.

Question 69

Chalmers v Johns [1999]

Answer 69

“considerable, noteworthy, important” is definition of signifance. Lived together for 25 years, two children, many minor incidents of violent, mother then leaves taking child. Chalmers applies for order under 33 to move back into property and for farther to move out. Held: granted because of violence in the case. Johns successful appealed. COA held: section 33(7) is reserved for “extreme situations” the minor violence in this case came nowhere near to creating this situation.

Question 70

B v B (Occupation Order) [1999] COA

Answer 70

Married couple, two-year-old daughter, husband had 6-year-old son who lived with couple. Husband was very violent beating up mother, she had emergency accommodation. She applied for order, held there was significant violence so met section 33(7) requirements so order was made. He appealed successfully because position of 6-year-old boy, going through trauma of divorce and 5 different moves. Held: to move the boy again means uprooting him, new school etc and this was the most important part. Held: order should not have been made. This was controversial. Also no harm to 2-year-old doesn’t know what’s happening. If husband is kicked out the local authority would not give him housing straight away, he would go to the bottom of the list because he had beat his wife. You have to go through checklist of 33(6) to tell you which order to make after requirements of 33(7) have been made. If it was not for the fact that husband was caring for boy then an occupation order would have been made.

housing authoritiy would have a duty to secure temporary accommodation for him, whereas wifes housing authority duty was to find permanent accomodation.

He had no job he at the time was full time caring for son. She had a job.
Son would have to change schools. Headmisstress wrote of a letter which spoke of the severe disruption.

Did not really take into consideration the violence because she left the home

Question 71

S v F (Occupation Order) [2000]

Answer 71

Two move out with mum, he has older child living with him (15 years), he is living with his dad only because he is about to do his GCSE. Court holds conduct is not necessary to make an order.

Question 72

G v G (Occupation Order: Conduct) [2000]

Answer 72

conduct does not mean intentional behaviour, unintentional harm can be taken into account. Three cases below show this

Tiny wounds may be inflicted with great malice: great blows may be struck unintentionally.

Question 73

Grubb v Grubb [2009] EWCA

Answer 73

Lived in a large house, which had been in husbands family, they had 5 children, marriage was in difficulties, he was being uncooperative and difficult with his wife, wife applies for order. Order was made by applying section 33(6) checklist, no violence under section 33(7). He appealed, COA said it is not a case as to whether conduct was violent or not, it is the need of wife and children are greater than your need. Husband was refusing to discuss divorce proceedings, how long order lasts if however long your bad behaviour is. Critically, the husband had adequate alternative accommodation and the wife was prepares to vacate the family home as soon as he provided somewhere else for her to live. It is clear that an application may be ade where the balnce of harms test is not satisfied in favour of applicant, but an occupation order is nevertheless desirable.

Question 74

Dolan v Corby [2011] EWCA

Answer 74

woman’s greater vulnerability arising from her psychiatric condition made her less well able to find alternative accommodation so got order excluding male.

Woman got order because:
she was more vulnerable (as ex heroin addict)
Verbal abuse only.

Question 75

Re L (Children) [2012] EWCA

Answer 75

arguing caused Significant harm to children. Order made kicking husband out. Husband appeals,
Rule of thumb the party with the children should stay in the family home.
It was declared that harm means “considerable, noteworthy and substantial”. Children were likely to suffer significant emotional harm as a reslt of their parents’ non-violent feud. The balance of harms test was not satisfied on basis that both parents were responsible for harm, but made order excluding husband from home for 3 months.

Justice Black said that physical harm is not required.

Question 76

Nwogbe v Nwogbe [2000]

Answer 76

Limitation on courts powers exposed in this case. The court made an occupation order with section 40 provisions requiring the respondent to pay the rent which he was excluded. He failed to pay. The COA could d nothing.

the CA recommended that courts do not exercise their power under s40 until an effective enforcement procedure is provided for. but no action has been provided for yet.

Question 77

Lake v Lake [2006] EWCA

Answer 77

tenancy transferred to Mrs Lake, judge was influenced by bad conduct of Mr Lake. He appealed that conduct was not a requirement in paragraph 5 schedule 7. Court held: this could be the “all the circumstances” requirement which is a requirement.

Question 78

Ansah v Ansah [1977]

Answer 78

Ormrod LJ: ex p orders should only be made `in an emergency when the interests of justice or the protection of the applicant or child demands immediate intervention. Such cases should be extremely rare.’
Art 6, ECHR – right to fair trial issues under article 6.

Despite Ormrod LJ’s statement, and perhaps surprisingly, solicitors routinely apply for an non-molestation order ex parte in the first instance. In the 2nd quarter of 2014, 3480 non-molestation orders were applied for ex parte, compared to 2282 on notice. In the same period, 168 occupation order applications were made ex parte, compared to 441 made on notice. But non-molestation orders are frequent, more frequent than notice. Ex parte is the norm, despite what Ormrod said in that case.

Question 79

Roberts v Roberts [1990]

Answer 79

It is contempt of court to breach the undertaking

Question 80

Chechi v Bashier

Answer 80

cross undertaking, they both promised an undertaking so no order made.

THE COURTT could have made a non mol but under s47(2) where there has been violence or threatened violence the court is mandated to attach a power of arrest, the court felt that this would give too much power to the petitioner.

Question 81

Lewis v Lewis

Answer 81

only where there is persistent disobedience should you attach a power of arrest.

Question 82

The old approach

Ansah (supra)

Answer 82

Committing to prison should be an alternative situation: “where every other effort to bring the situation under control has failed or is certain to fail”, meaning you have tried something first.

Question 83

R v R (2001) CA

Answer 83

1) Retribution
2) Also trying to coherce that person into not doing so in future,

when committing someone to prison
This should be a balance

Question 84

Wood v Collins [2006] EWCA

Answer 84

COA man sentenced to 28 days in prison breaching non molestation order by texting his ex and harassing her in person, 28 was increased to 3 months because he had a history to breaching orders and only 3 weeks earlier had successfully appealed against sentence. Court will increase sentence if they do not get message.

Question 85

G v G [2006] EWCA

Answer 85

G threatened to kill wife breaching order, damaged her property, He was sentenced to prison to 12 months. He appealed, held sentence for 12 months was harsh although immediate prison was justified. Considering as max sentencing is 24 months, 12 months was harsh for what he did.

Question 86

DL v A Local Authority

Answer 86

Local authority were permitted to seek injunctions under the inherit jurisdiction to protect a vulnerable but competent elderly couple, against their wishes, for the abusive adult son.

Question 87

Yemshaw v Hounslow LBC

Answer 87

Yemshaw had left home, the reason she had done so was because she was worried about being beaten up by her partner. Therefore, she goes to local authority to ask for housing, if a person is homeless because of domestic violence this is classified as unintentional homeless. The local authority (Hounslow) decided that she would not be given prority, because she was only a victim of threats of violence. Is violence literal violence or is it broader?
The Supreme Court under Baroness Hale said violence means more than physical violence, she adopted the definition in the practice direction. Baroness Hale said that we have to respond straight away to minor incidents.

Question 88

New definition of domestic violence from the government in 2012

Answer 88

Any incident or pattern of incidents of controlling, coercive, 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. The abuse can encompass but is not limited to:
• psychological
• physical
• sexual
• financial 
• emotional

Question 89

Opuz v Turkey

Answer 89

Long history of violence between husband and mother-in-law, each occasion the law failed to protect them. He beats both of them up and receives fines normally. He then stabs his mother and kills her. The wife takes him to court arguing a breach of article 2 – right to life, 3-right to humane treatment, 14 – right for no discrimination. Held there is a positive obligation under article 2 and 3 but only where:

1) authorities knew of the risk to an individual, who its coming from and who is at risk, it must
2) be a real and immediate risk
3) only liability if the authorities should have/could have prevented it, taking reasonable steps and they fail to do so.

“For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”
The words in Italic show that it is only enough that the state might have prevented death.

Held authorities should have known, breach of article 2 and 3, and taking together article 14,

Question 90

A v Croatia

Answer 90

Husband had been convicted of violence and sent to prison, he got 8 months but released by 1 month because prison authorities didn’t think his case was that serious. He then committed serious violence against wife. Held: breach of article 8, wasn’t protect by state.

Question 91

Davis v Johnson

Answer 91

per Lord Salmon: domestic violence legislation was intended by Parliament to provide “first aid not intensive care”

Question 92

Non mol solicitors

Answer 92

some soliciotrs have been saying to clients that non mol orders only covers physical violence which leads o physical injury can be covered (2009 - burton “why are applications for non molestation orders declining?) but this is wrong.

Question 93

Impact of Chalmers v Johns 1999 and G v G 2000

Answer 93

Dolan confirmed that Chalmers v Johns or G v G should not be read as saying that an exclusion order can only be made where there is violence or a threat of violence. That would be ‘to put a gloss on the statute which would be inappropriate’. Chalmers v Johns and G v G reiterated the draconian nature of an occupation order and reaffirmed that such an order should only be justified in exceptional circumstances.

Question 94

Making an occupation order

Answer 94

a) An exclusion order is a grave order but can be made in the absence of violence or the threat of violence (Dolan [at 27]);
b) The judge ought to identify and weigh up all of the relevant features of the case, whatever their nature (Dolan [at 27]);
c) The relative vulnerability of the parties is relevant to the court deciding which party ought to be excluded from the property (Dolan [at 27]);
d) Where an occupation order is deemed necessary the court ought not simply to consider the behaviour of the parties and award occupation to the party who behaved less inappropriately; conduct is only one of the circumstances which falls to be considered (Dolan [at 28]);
e) S33(6) is drafted broadly - it requires the court to weigh up all the circumstances and grant an occupation order where those circumstances are extreme. Extreme circumstances do not, however, require violence (Re L);
f) An occupation order carries its greatest level of seriousness when it is made against a party to whom alternative accommodation is not readily available (Grubb at [26]);
g) Harm caused (whether in assessment under s33(6) or s33(7)) need not be deliberately caused but a lack of intent may be a relevant consideration (G v G [2000] EWCA Civ 509 [at 13, 24]).

Question 95

what did the law commission 1992a say?

Answer 95

an occupation order ousting the respondent from the home will often be the only way of supporting a non-molestation order and giving the applicant effective protection.

There is a distinction between entitled and non entitled applicants because:

1) an occupation order can severely restrict enjoyment of property rights
2) in case of entitled person, the orders purpose is beyond short term protection. In case of non-entitled applicants, an order is “a short term measure intended to give them time to find alternative accommodation”

Question 96

What is an entitled person?

Answer 96

An entitled person has home rights under s30.
S30 is where one spouce is entitled to occupy the home, and the other is not. The spuce who is not entitled is given home rights.

Question 97

Balance of harms test reform

Answer 97

Due to criticisims, it was said that that law commissionw as unsatisfactory in that the old crtieria for granting orders did not afford adequate protection to victims of violence and gave insufficinet weught to the interest of children.

Question 98

Law commission 1992 occupation order

Answer 98

a respondant threatened with ouster on account of his violence would be able to establish a degree of hardship. But he is unlikely to suffer significant harm where as children and wife would.

Question 99

is an occupation order draconion?

Answer 99

Chalmers v Johns - the order is draconion and it should only be justified in exceptional circumstances.
What would qualify as exceptional is not clear

in G v G (occupation order: conduct) the court sugguests that exceptional circumstances little other than violence will suffice.

even where there is violence, the court will not necessarily grant an order (B v B(Occupation order)) - Kaganas says that the wife was refused an order because she fled the house.

Question 100

G v G (occupation order) 2009

CA

Answer 100

Husband was verbally abusive, controlling but not violent. Wife sought an occupation order under s33(6).

Husband was wealthy, he had alternative accommodation available. Held: order granted
1) The seriousness of an order is greatest where the spouse against whom it is made has no alternative accommodation. Moreover, as he had considerable resources he could provide a home for the wife and children too. Therefore, the duration of the occupation order would be as short as he chose to make it.

Question 101

s35 occupation order

Regulatory orders

Answer 101

s5
s8 - balance of harms test - duty
s7 - s6(a)-(e)
s6(a-e) - discretion