Violence in family 1 & 2 Flashcards
INTRO- 1st thing need to know ?
No specific crime of ‘domestic violence’
what can you get for dv?
Protection from both civil and criminal law- perpetrator can be punished under both ,
difference between civil and criminal dealing with dv?
takes account of victims needs and protects from future violence
- criminal all about punishing
- civil law is about looking forward and protecting victim, and it protects victims by making property and behavioural orders,
what does a civil claim do?
stop future violence
what are the 3 x civil orders ?
- Non-Molestation Order
- Occupation Order
- Protection from Harassment Order
what should we not forget?
can be joint orders too non and occ, so u can have these two together and just don’t forget women and men are both victims
What is domestic violence?
Means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) btw individs who are associatd with eachother-not restricted to physical violence -harrasssment assault rape, types of d v , now aswell as this def gov as def
govs def of dv?
‘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.’
-similar but not exactly the same, not limited to psychological
The abuse can encompass, but is not limited to:?
psychological physical sexual financial Emotional
- Includes ‘honour’ based violence and forced marriages
what is controling b?
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.
controlling b short?
isolate people-takes into account someone might be ontrolling u for period of time in a subtle way
What is coercive 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.
what does coerciv b take into account?
coercive behaviour is really about power and control, so when u think about d v , coercive takes into someone having control over someone days to day behaviour, over time builds up into abuse - could be physical but its all about control and gives
why did gov put coercive b?
gov did this to encourage v to come forward so then theyre recognise what suffering comes within coercive haviour
Definition includes Teenage Relationship Abuse?
- includes those aged 16-17
- 16-19 year olds more likely to suffer partner abuse than any other age range
-including boys thers bee a rise in abuse against boys
what is prob with teen rel abuse?
nothing comes reported as teenagers brush it off where adults more likely to complain
what else is concluded?
is not what happens its how the v feels?
-Pushing, slapping,touciing, intimdatin, harassment, pestering, shouting financial control, social isolation , forcing a child to witness abuse , misuse phoncalls, assistant text messages emails??, covers things like punching walls or doors, covers wide range of behaviour
orders under Part IV Family Law Act 1996?
Non-Molestation Order
(s 42)-mol- if u breach non molestation order = criminal offence , you don’t need power of arrest
+
Occupation Order
(ss 33-41)- Breach occupation order= not criminal offence unless power for arrest is attached:???, we go over this again but…
Get power of arrest normall if there is violence present, you can have both of these things together
what are Non-Molestation Orders – s.42?
Fast remedy for a victim of DV
which act of molestation?
Domestic Violence, Crime and Victims Act 2004 makes breach of a civil order a criminal offence
- Wide powers given by the Act
- No definition of molestation in the Act
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what happened in davis?
Davis v Johnson [1978] ‘violence is a form of molestation… molestation may take place without the threat or use of violence and still be serious to mental and physical health’
first mol case?
Can be indirect
Horner v Horner [1982] – husband harassing wife at work- saying how bad of person she was , fell under mol
What can you contrast horner with?
C v C (Non-Molestation Order: Jurisdiction) [1998]
Giving of information to tabloid newspapers
- aim was humiliation but this was not regarded as molestation, that’s because it cvc tried to use the molestatoj laws to protect privacy and that’s not what it is designed for, so husband was trying to protection reputation that molestation and cant use the law for that, so it did not affect his health safety or …
what happened in the johnson case?
Johnson v Walton [1990]
Semi-naked photos of girlfriend sent to the press-in press was molestation
what happened in P v D and Others [2014]?
P v D and Others [2014] – limits on use of social media
husband was trying to molest people fake accoutns and then children ex wife and molest over itnere, he had non molest order which meant that he could nto contact wife children by social media and that he was not to hack into accounts
what happened in spencer?
Spencer v Camacho [1984] – riffling through partner’s handbag
Who can apply for a non-molestation order?
relevant child s 62(2)
- those ‘associated’ with the perpetrator
s. 62(3)- long list
what does it mean by asoc?
Includes:
(a) current or former spouses/civil partners
(b) cohabitants or former cohabitants
(c) they live or have lived in the same household, otherwise than being the other’s employee, tenant, lodger or boarder. - live togev but no sexual rels
(d) they are relatives
more associ?
(e) they have agreed to marry one and other (whether or not that agreement has been terminated)- need evidence to say married cant just say it
(f) they have or have had an intimate personal relationship with each other which is or was of a significant duration.
The Domestic Violence, Crimes and Victims Act 2004 - relationship need not be sexual but that platonic friends are excluded-pugging of gap covers those who not cohab , really covering people who are DATING, intimate personal rels, btw platonic friends and sexual rels, longstanding rels doesn’t include 1 night stands
(g) they have entered into a civil partnership agreement
(h) in relation to any child, they are both persons falling within subsection (4); if u fall within subsec 4 u are parent of child or someone with pr
or-
(i) they are parties to the same family proceedings (other than proceedings under this Part).-e.g parties to a s.8 order
The examples are all under?
s.62
what does associ exclude
excludes STALKERS,if the victim has never been in a rels
but if not cant use molestation but u can use PROTECTION FROM HARRASSAMENT
Child as an applicant for a non-molestation order: Under 16 with leave of the court?
s. 43 u can apply if under 16 if u got a leave court have to prove gilick competence know consequence of what ur ding
- : Under 16 with leave of the court
Court’s approach to defining ‘associated persons’
which case?
G v F (Non-Molestation Order: Jurisdiction) [2000]
Couple did not cohabit but spent 2 or 3 nights together
They held a joint bank account
They were in a sexual relationship
what does g v f say?
G v F says a ‘purposive’ approach should be taken -purposive approach in defining an associaterd person so in other words must look at construction of the act, taking u back to skills and assiting module so u need purposive approach and then in case of crake
what happened in cake?
- Their relationship met some of the six signposts set out in Crake v Supplementary Benefits Commission [1982]
what are the 6 sign posts?
- whether they were members of the same household
- whether the relationship was stable
- whether there is financial support
- whether there is a sexual relationship
- whether they have children
- whether there is public knowledge of the relationship
g & sign posts?
Said in gvf that this couple met some sign posts in case cases not clear if someon associated or not
what is s42 2-
s. 42(2) – court’s power to make order where it feels one should be made
what is s.42 5-
s.42(5) – ‘all the circumstances including the need to secure the health, safety and well-being of the applicant or any relevant child’
what does health include?
Heath includes physical and mental health so do not need physical violence
what is the standard wording of the order?
Standard wording of an order: ‘respondent is restrained from assaulting, molesting, annoying or otherwise interfering with the applicant or any child living with the applicant.’
timing?
- for a limited or unlimited amount of time
what does s.42 5 focus on?
Focus on s.42 5 is on th need for porteoction and looks at needs of victim?? So what does the victimactuall need
what does the act not d?
So act doesn’t look back, just confirms criminal not sayig has to prove just say does v need protecton going forward AIM OF ACT IS PROTECT NOT ON CONDUCT ITS ON VICTIMS NEED
what is s.42 6?- what can it refer to?
s 42(6) the order can refer to a particular act of molestation E.g. persistent telephone calls
what do courts have with non mel order?
Courts have a wide discretion whether to grant a non-molestation order
U just have to rpve safety and wellbeing is in threat
law is victim focused
what dont you need in regards to evidence?
No specific evidence of violence or threats of violence are required
any behaviour that harrases appl falls under this
what is the stand of proof?
Standard of proof – balance of probabilities
-51%
Must the respondent ‘intend’ to molest the victim?
answer to this q is no , bc the focus is on response of v not the offenders intention , so if you were to say for e.g person end rels with someon else they mght want to have contact, harassment, recieiven unwelcomig but intention isn’t to harass
enforcement- what will make mol order no effect?
But 1 of things wont make mol order if no effect, so if have someone who is wouldn’t understand implication of non order wont make it, so no effect wont make one
whats the reason for this response?
Reason on response bc lets say u were under influence of drugs, so if law says u must intend if u were in durnk could say weren in right mind that’s why they focus on the v
non mol in exam tip?
Non molestation, occupation and proteftion from harassment will come up as all 3 topics in a esay q and if it’s a problem q in exam then protection from harassment and occupational roders will go hand in hand so normaly talk about potetoj from hrrrass and occupation order bs question ask would normall be with someone living with someone else so would pass an occupation order, so this is only 50% what u need to write about, the law isn’t very clear wooly, so al u have to see if behaviour falls under non moles and associated and is the safety wellbeing of someone being harmed and just remebr if they breach it.
2- new topic?
Protection from Harassment Act 1997
what does the act capture?
those failing outside of Family Law Act 1996-fall out family law casue they are not associated people
what do you not have to prove with this act?
So for this u don’t need to prove related/ relationship-no requirement of relationship – Act created to deal with stalkers
what was the acted created for?
the act was created to deal with stalkers but a lot of stalkers are ex partners and some current partners aswell,
what id you gt exam q where someone in rels?
still discuss protection from harraass because its really broad its not designed for cohab couple or people who know eachother, but those people dof all under protection from ahrrassment, so in most q on violence of family cover all 3 , q will be designed for u to cover all that
what must the offences contained in s1 do?
must satisfy s1 subsection 2 - find all sections in stat
how many q’s must we consider in regards to this?
3
what is the 1st?
what is harassment?
def for harrasment?
lack of statutory definition but see s.7(2)-
what does s.7 (2) say?
References to harassing a person include alarming the person or causing the person distress
what does the case Majrowski v Guy’s and St Thomas’ NHS Trust [2005] explain?
-so that the fact that person suffers distress may not be h, the behaviour needs to be judged objectively to be h, you ought to know causing h or someone else objectively that behaviour h
what happened in case hipgrave?
Hipgrave v Jones [2005]
‘so grave as to amount to a criminal offence or little more than boorishness or insensitive behaviour’
-so shows wide spectrum of behaviour, could be fairly serious to fairly minor
what happened in case hayes mean?
Hayes v Willoughby [2013]
‘a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress’
-so tells us that have to look at impact of behaviour on victim
what is meant by impact is important?
So have to think about someone sending lots of flowers to someon e.g flowers twie a day might make v feel uncofrtbale but if smeone else thinks h then it will be even if perp don’t, sending flowers inst bad but loads is bad
what is the 2nd question?
what is a course of conduct?
what happens in exam in relation to course of conduct?
In exam always have 1 person and conduct on 2 occ In rel to that person, I would make note of b… cause in exam 1 person
what does s.7 3 say that this needs to be regarding to?
regarding a single person – conduct on at least 2 occasions
s. 7(3) - So don’t need lengthy vendetor
what happened in kelly case?
Kelly v DPP [2002]
- three phone calls in 5 minutes - this also tells us that conduct can include speech
what happened in lau case?
Lau v DPP [2000]
- girlfriend slapped, then verbally abused four months later
-case held no h cause no course of conduct , they said the two incidents were not connected
what do 2 incidents not always mean?
Two incidents does not automatically mean a course of conduct has been established:
what happened in r v hills case?
R v Hills [2001]
- one incident in April, second in October
-1 in april, 1 October consiture course of conduct but in r v hills ther was cohab btw 2 incidents, so couple cohab btw the 2 indidents
what happened in curtis case?
R v Curtis [2010]
- ill-temper and bad behaviour but affectionate life too
-so couple cohab btw the 2 indidents,casue act isn’t for cohab people , andthese 2 cases long way from stalking cases
Q: What do these cases tell us about parties who cohabit and their rights under the Act?
Courts done said not deisng ed for cohab but in theory there is no reason why they cant use it, maybe discouraged to use it, so this is the acts sole purpose not cohab , exam something u need to watch, but has been used in other ways so fairly wide ranging.
what happened in Majrowski v Guy’s and St Thomas’s NHS Trust [2007] ?
‘protection from stalkers, racial abusers, disruptive neighbours, bullying at work and so forth’
what has act been used as ?*
Act has been used in demonstrations at an animal laboratory - Huntingdon Life Services Ltd v Curtis (1997)
what would you use in exam ?
As student ask if I was dam protection for harr or non mol I think go non mol asso= quick and designed to cover and also u can combine with occupational order
Non mel occ= ecludes someone from home , so ned comb realy?????
what is the third q?
how far does the person in question need to be aware of the nature of his actions?
how far does the person in question need to be aware of the nature of his actions?
- knows or ought to know (s 1)
- meaning of ‘ought to know’ in s 1(2)
what do you need to watch out for?
Need to watch out people suffering mental health issues do they fall under this, they may fall outside but could dall under objective bt?? Course of conduct h?
when are Defences available?
A defence is available in s 1(3)
what is the onus of proof on?
On defendant-Up to d to show b falls udner one of this sections, debt colctor fall under s1 3 etc etc journalism
Consequences of a finding?
creates both a civil wrong and a criminal offence
- allows criminal law to punish but provides protection for the victim
- do not have to pursue both criminal and civil remedies. Civil enforcement may still be used when the standard of proof for criminal acts is not satisfied
