An occupation injunctive order:
- Gives the applicant the right not to be evicted or excluded from the dwelling house or any of it by the respondent for a period specified in the order.
- It also prohibits the respondent from evicting or excluding the applicant during a specified period.
Where necessary, further provisions are made which grants the applicant the right of entry into or occupation of the dwelling house.
In a domestic violence case, where the court deems that the facts presented in a case has passed a ‘balance of harm’ test; further provisions could be made to require:
- The respondent to leave the dwelling-house or part of it
- Excludes the respondent from a defined area in which the dwelling-house is included
The range of permitted applicants for an occupation order is narrower than for a non-molestation order. There are the entitled and the non-entitled categories of applicants which is consequent on the ‘entitled’ or the ‘non-entitled’ person’s application order in terms of range of stipulations, length and possible extension of the order.
The Children Act 1989 (Emergency Protection Order with Exclusion - Part V Section 44) & Family Law Act (Amendments of Children Act 1989 –Part IV Section 52)
A person experiencing relationship breakdown as a result of domestic violence with a relevant child involved can apply to the magistrate court, county, or high court as an authorized person for an Emergency Protection Order with an exclusion requirement. Where the court has reasons to believe that the exclusion of a ‘relevant person’ (the perpetrator) from a dwelling house would diminish the possibility of a child suffering a ‘significant harm’.
(i) If the child is removed to accommodation provided by or on behalf of the applicant; or
(ii) If the child does not remain in the place in which he is being accommodated
And that another person living in the dwelling-house (the applicant) is able to give the child the reasonable care expected of a parent and that this person (the applicant) consent to the inclusion of an exclusion requirement within the order stipulations. The court can make any one or more of the following stipulations:
- A provision requiring the ‘relevant person’ (the perpetrator) to leave a dwelling house which he/she is living with the ‘relevant child’.
- A provision prohibiting the ‘relevant person’ from entering a dwelling house, which the child lives.
- A provision excluding the ‘relevant person’ from a defined area of the dwelling house in which the child lives.
An application for an Emergency Protection Order can be heard ex-parte and the courts may attach a power of arrest to the order or may accept an undertaking. The order is usually valid for 8days.
Critique
Much as the overriding aim of the government (in promulgating the Family Law Act 1996) is ensuring that provisions under the civil law offer the maximum protection to all victims to stop the violence recurring. Nonetheless, provisions under the non-molestation order and occupation order all short of providing a safety net for all.
The ‘associated person’ elite
The ‘associated person’ criteria blatantly exclude people in relationship who have never lived together. This no doubt excludes a great lot of many unmarried partners who have never lived together. The reality is that this omission will continue to impact on the lives of victims whose well –being and safety is jeopardized by the lack of viable and meaningful protection against physical, psychological, and emotional assaults from their tormentor. It is a known fact that with the high cost of property in England coupled with the shortages of affordable social housing, many unmarried partners are not able to climb on the property ladder or establish a joint family home. Hence there are a considerable number of young unmarried partners that are still living with their parents or sharing flats/house with friends. Where a relationship breaks down under the strain of domestic violence the victim would have no access to a non-molestation order and occupation order is clearly untenable.
In the same vein, same-sex couples do not count as cohabiting couples because the FLA defines cohabitation in terms of a man and woman. It is a common wisdom that the relevance of a law or legislation should be measured against it relevance to the status quo ante and status quo within its social jurisdiction. Gay and lesbian relationship is an impinging reality in modern day society, any law that disregard this social fact can be said to be discriminatory, myopic and non-consensual.
Also, the ‘entitled’ and ‘non-entitled’ categories with the occupation order qualifying ‘associated person’ category marginalizes a group of people (unmarried non-cohabiting couple without a child and same sex couples) by conferring them with no rights or vastly delimited rights. The existence of five variant kinds of occupational orders defeats the main objective of the order. Rather than using this order as an oasis of protection for the victims of domestic violence the existence of a watershed ‘cut to fit’ variant orders belittle the fact that domestic violence is a defining problem in the lives of the people that are classified into variant categories. Applying different solution (based on qualifying matrimonial or tenancy status) to the same common defining problem seems a half-hearted commitment to eradicating the defining issue.
Attitude of the judiciary and the legal system
Despite the government’s good intentions in providing emergency effective and protective injunctive powers to the courts, the Bench, the Bar and the entire legal system would equally have to respond to and support the spirit of these legislation. Rather than frustrate the efforts of the government in bringing about speedy responsive protection to the victims of domestic violence, the judiciary would have to adopt attitudes and legal modalities that could foster the achievement of the desired results. The areas within the judiciary practices that calls for changes are amongst others:
- The use of undertaking instead of an order with a power of arrest attached
- The reluctance in making an ex-parte exclusion orders
- The need to make adjustments within the court physical, bureaucratic and administration arrangements to cater for the needs of vulnerable applicants with special needs that would normally be an aberration to the court or legal system
- That the judges and magistrates need to be abreast with the thinking within the government that has informed this legislation.
- The willingness and co-operation of the court and the Bar in ensuring that poor vulnerable victims of domestic violence are giving the right information, advise and support in other to access emergency injunctive orders.
Enforcement of the orders
Much as FLA strengthens and reinforce the power of the courts to hear ex-parte applications and pronounce relevant injunctive orders, but the process of actually serving the injunction on the respondent is still riddled with gridlocks. The inability to serve a notice on the respondent can delay a full court hearing for weeks thus exposing the victim to further assaults especially in a situation where the police and the court bailiff are unable to catch up with the respondent.
Long Term Remedies
Protection from Harassment Act 1997(Part–Section 3): Civil Remedy
This act generally prohibits harassment and it creates an offence of harassment breach of which is actionable in both civil and criminal courts. A civil remedy can be sought by the victim (which in this case does not have to be an associated person) by way of an injunctive protective order before the county or high court.
Section 3 of this act creates a statutory tort of harassment wherein the victim could claim damages for anxiety caused and/or financial loss resulting from harassment or being put under the fear of violence by the defendant. The applicant can within the same proceedings seek an injunction restraining the defendant from pursuing any conduct, which may amount to harassment, or being put in fear of violence. Usually, a power of arrest cannot be attached to this stipulation but where there has been a breach the applicant can apply for a warrant of arrest. A person guilty of an offence under this act is liable on conviction to prison terms of six months to five years or a fine or both.
Divorce or Judicial Separation (Matrimonial Causes Act 1973 & Family Law Act 1996)
Within the provisions of these acts the only acceptable ground for a divorce or judicial separation is the irretrievable breakdown of marriage. Unreasonable behaviour by way of violence and physical assault is an acceptable is an acceptable ground for divorce. The new provisions in the FLA 1996 have substantially amended provisions under the MCA 1973.
The Matrimonial Causes Act 1973 is the basis of current legal provisions on divorce. It provides a method of regulating and sharing the matrimonial home, property and finance.
No divorce petition can be made until the marriage has lasted a year although it is possible to apply fro a judicial separation before this time. A decree nisi is pronounced in court when the court is satisfied that there are grounds for divorce. Although this does not end the marriage, it ensures that the couples are given further opportunity to reconcile. A decree absolute, which legally dissolves the marriage, can be granted six weeks after the decree nisi provided the court is satisfied with the arrangements for the child/children. Where there is no mutually consented agreement between the divorcing couple or where the court is not satisfied with the agreement; the court would make an order on the sharing of property, finance, and liabilities with strong consideration given to the well being of the relevant child/children.
It’s worth noting that where an occupation order and/or non-molestation order is made within a divorce proceedings, the court would decide whether to uphold or extend any or both of the orders or bring it to an end.
Critique
Whilst the Protection from Harassment Act provide easy to access protection to almost a wider range of people but the requirement for a proof of conduct which shows an offence “committed by following a course of conduct which amounts to harassment or causes of fear of violence to another person” – if the perpetrator knows that it would cause a fear of violence. In addition, this cause of conduct needed to have been committed on at least two occasions. This hurdle makes it more difficult to prove harassment (since intentionality of the perpetrator must also be proved) in a civil proceeding.
Moreover, it is most unlikely that the highest percentage of domestic violence victims would be able to afford the cost of instituting a civil proceeding against their tormentor. This is compounded by the new restrictions on eligible applicants for legal aid. Also, since PHA can be used proactively to forestall serious act of domestic violence it has been shown that the police tend not to take such ‘minor offences’ seriously. The police are yet to see the protection offered under PHA as a pre-emptive opportunity to nip domestic violence in the bud. In the same vein, in face of possible civil remedy in a domestic dispute the police are likely to be indifferent when a victim prompts them to get involved in bringing criminal prosecution against the offender.
Where a victim applies for an injunction as a civil remedy, there is however no provision within PHA for the attachment of a power of arrest. To get the offender arrested the victim has to apply to the court for a warrant of arrest which then has to be passed on to the police.
As well as being a particularly distressing and emotional process, divorcing one’s partner is a very expensive and sometime financially crippling venture. Depending on one’s social – economic status the cost of hiring a divorce solicitor is quite prohibitive especially when the parties in question are just barely scrapping a living. Over dependence on Legal Aid has led the government to introduce stricter means test eligibility criteria. Sometimes the application process for Legal Aid is unbelievably slow, and often the solicitors requires deposit or upfront part payment. Hence, many divorcees have found themselves heavily in debt as a result. A much simpler and straightforward divorce procedure, which could do without ‘fat cat’ solicitors and barristers, would alleviate this problem.
The stipulations on divorce under MCA 1973 makes it compulsory that a marriage cannot be dissolved until after a year. The gruesome reality of a person suffering both physical and psychological humiliation within a marriage should have informed a provision for an accelerated or fast track divorce in some specified circumstances – domestic violence being one.
The provision within the act for the court to agree to a financial and property agreement that have been mutually agreed by the parties leaves open the possibility of the abuser with excessively overbearing tendencies to exert pressure (emotionally, psychologically and where possible physically) on the victim. Frightened and wanting a quick exit from the marriage without any reprisal: the victim could capitulate to a pseudo-arrangement, which the court would most likely endorse.
The divorce provision under this act concerning prescribed property settlements considerations could unwittingly end up benefiting the ‘abuser’. Where the ‘abused’ party to the divorce is exceedingly rich the final settlement for the ‘abuser’ would no doubt (going by the equation prescribed) be substantial. This could possibly inform a new public perception that abusing ones’ spouse pays for as long as one marries rich. There should be a stipulation within the divorce legislation, which enjoins that the secondary consideration in a divorce settlement hearing, after considering the well being of the relevant child, should be the conduct of the parties. The present legislation does not deter the abuser from repeating the same pattern of abuse in his/her next relationship.
REMEDIES UNDER THE CRIMINAL LAW
Protection from Harassment Act 1997 (Section 1,2, & 4)
This act prohibits harassment and creates four criminal offences of:
- Harassment
- Putting another person in fear of violence
- Breach of restraining order
- Breach of an injunction
A person guilty of an offence under this act is liable on summary conviction to prison terms, which varies from six months to five years or a fine or both.
Criminal Justice Act 1988 (Part 2 Section 23(3b)
The seldom used part 2, section 23 of this act facilitates the criminal prosecution of perpetrators of domestic violence (or any other criminal offences where most victims for reasons best known to them chose not to co-operate or support the criminal prosecution of the offenders) by providing for the submission of a written statement (taken by the police from a victim of domestic violence at the heat of the actual offence) in the absence of an oral testimony or statement from a victim of a criminal offence (who has withdrawn or refuse to co-operate with the law enforcement agency and the prosecution).
This provision requires that a written statement is admissible in the interest of justice and that admitting the statement would not be prejudicial to the defendant. Nonetheless, this section has been rarely used by the police and the CPS on the ground that the absence of a witness makes a case practically untenable.
Police & Criminal Evidence Act 1984 (Section 25)
This legislation empowers police Officers to arrest where they have “reasonable grounds for believing that arrest is necessary to prevent the relevant person causing physical injury to himself or any other person …or necessary to protect a child or other vulnerable person”
Critique
Concerns have been expressed about the non-chalant attitude of the police in prosecuting under the criminal code offenders who have acted in breach of restraining orders pronounced under the Protection from Harassment Act 1997. The police attitude is informed by the parallel existence of a civil remedy, which the victim could seek alternatively. And reinforced by a male-chauvinistic perception of domestic violence as a ‘domestic matter’ between partners and not one that the police should get embroil with. Although the Home Office through Circular 60/1990 and other initiatives have tried to engender a change of attitude within the police force – and this has started to bear some positive results. In addition, I would strongly suggest a change in the descriptive terminology of this sort of crime from domestic violence to ‘anti-family behaviour’ or ‘violence against relatives’. The word ‘domestic’ in common day-to-day parlance denotes something private or a private affair; it is no surprise then that the general public’s cognitive understanding of ‘domestic violence’ is a far cry from the reality peculiar to this form of human behaviour.
The provisions within PHA provides the respondent with the ability (under certain conditions) to apply to the court to vary or terminate the restraining order but there isn’t any stipulation to inform the victim or seek the opinion of the victim when an application is made to vary or end a restraining order.
Despite the seemingly abundant power given to the police to arrest and prosecute domestic violence offenders, the ratio of arrest and prosecution relative to the police recorded incident of domestic violence beggars understanding. The police and the CPS are somewhat frustrated by the lack of co-operation from victims, insufficient evidence and the unwillingness of judges to pronounce reasonably long custodial sentence against persons found guilty of domestic violence related offences.
I would like to suggest a “three strike” police action regime on domestic violence cases. This should be backed up by a government policy pronouncement on ‘three strike’ initiative. When called to an incident, the police should automatically arrest the ‘abuser’ where they have reasons to believe the abuser have caused or could cause injury to himself or others. The ‘abused’ should be discreetly asked to make a statement. The abuser should be kept in police remand until such time that it would be reasonable to release him. He should be issued with a warning and information booklet on the government and police policy on domestic violence which states clearly that the police would prosecute him on the third occurrence of any violent conduct against the victim (his spouse and children) regardless of whether the victim supports the prosecution or not for the victim would be compelled by law to testify against him. For this policy to work judges, police officers, CPS staff, probation officers should be avail of the new initiative and the thinking within government that informed this policy and the desired effect, which the government would like to attain.
REMEDIES UNDER STATUTORY LAWS
The Housing Acts 1985,1988 & 1996
Section 2 of the Housing Act 1985 & 1988 specifies the grounds for the possession of secure and assured tenancies respectively on the ground of domestic violence. However, these provisions under both acts have been amended by the Housing Act 1996 (section 145 &149), which provides a broader ground for possession in cases of relationship breakdown as a result of domestic violence. The act stipulates that a court (usually a county or high court) may grant possession if:
- A spouse or cohabitee has left an accommodation because of violence by the partner and the court is satisfied that the person who has left is unlikely to return.
- A threat of violence may have been directed against the person who left or against a member of that person’s family who was living with them at the time.
Homelessness Act 2000 & Housing Act 1996 (Part VII)
These legislations makes it a statutory duty for a Local Authority to accommodate a person or household who is homeless or threatened with homelessness if it would not be reasonable for such person to continue to occupy an accommodation if it is probable that this would lead to domestic violence from an associated person.
Section 177 of Housing Act 1996 states:
It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him, or against
(a) A person who normally resides with him as a member of his family, or
(b) Any other person who might reasonably be expected to reside with him.
CONCLUSION
Without any shred of doubt, the domestic violence law and practices reflects the prejudices endemic in our society. There will continue to be the debate on whether the lasting remedies to domestic violence lies within the civil and criminal law. It has been argued that the government effort in providing reinforced civil injunctive remedies has been nothing but a diversionary attempt, which reinforces and reaffirms the popular belief that marital violence is quite different from other violent crime. On the other hand, criminal legislation on domestic violence have proved ineffectual and toothless as custodial sentences of offenders are very rare – which leads us back to square one!
Experience and practical reality has shown that neither civil nor criminal law can adequately deal with the scourge of domestic violence. Only a comprehensive and concerted approach involving multiple agencies and relevant statutory organizations can even begin to deal with the problem. The Law Commission Report of 1992 states:
“Domestic violence is not simply a legal problem which can be eradicated by appropriate legal remedies. It is also a social and psychological problem which can be eliminated only by fundamental changes in society and in attitudes to women and children While legal remedies are an attempt to alleviate the symptoms of domestic violence they can do little to tackle the causes”
BIBLIOGRAPHY
Cowen, D. (1999) Housing Law & Policy, Macmillan Law Masters series : Basingstoke
Arden, A & Hunter, C (2003) Manual of Housing Law, Thomson, Sweet &Maxwell: London
Bird, R (2002) Domestic Violence Law & Practice, Family Law Series: London
Hague, G & Mallos, E (2001) Domestic Violence - Action for Change, New Clarion Press: Cheltenham
Home Office, 2003, “Safety & Justice: The Government ‘s Proposals on Domestic Violence” Home Office, London
Home Office, 1999, ‘Living Without Fear – An Integrated Approach to Tackling Violence Against Women’ Published by The Women’s Unit, Cabinet Office.
Home Office, Briefing Notes ‘Reducing Domestic Violence… What Works?’
Home Office, London
Home Office, 2002, ‘ Domestic Violence: Break the Chain Multi-Agency Guidance for Addressing Domestic Violence Home Office, London
Department of Environment, Transport and the Region (2000) Relationship Breakdown: A Guide for Social Landlord, H.M.S.O.: London
