Supreme Court Case analysis - Yemshaw v London Borough of Hounslow (2011) UKSC 3

The issue illustrated by Lord Brown was that “Is the concept of ‘domestic violence’ in section 177(1) of the Act limited to actual physical violence or is it capable of extending to abusive psychological behaviour which could reasonably be described as ‘violence’?”. The question at had was whether the Court of Appeal decided correctly in the case of Danesh? If the outcome were to be that ‘violence’ sheds light on a wider meaning, then the case would be passed back to the local authority to reconsider the decision made.

The appellant was successful in applying to the Supreme Court where Baroness Hale gave the leading judgment. When we look at the term “violence” in dictionary terms our natural meaning would be “physical violence” it could also mean “strength or intensity of emotion; fervour, passion”, however this is not the only meaning. Even though previously the meaning of “violence” was limited, as time has moved on since Parliament passed the Housing Act 1996, so has our understanding of it. Lady Hale recognised the changing understanding of the word at both an international and national level. Lady Hale said that in Danesh, the courts preferred a narrow construction under section 177(1) that “violence is defined as violence or threats of violence”. Violence itself included conducts which put a person in fear of violence, but there are some conducts which would not be described as threats. For example, in the case of R v Ireland (1998) which concerned silent phone calls that constituted to physiological harm under the Offences against a Persons Act 1861. Also other abusive behaviour such as “locking a person (including a child) within the home or depriving a person of food or of the money to buy food” has now been recognised as domestic violence. The meaning of violence under the 1996 act had expanded, “it is not a term of art... capable of baring several meanings and applying to many different types of behaviour”. The Supreme Court made it clear that when deciding on the actual meaning of the statute, it is not for the government to decide but for courts to interpret it. The question is whether the new meaning is consistent with the legislative statutory purposes.

The term “domestic violence” should be applied through factual circumstances at the current changing time. Under section 177 of the Housing Act 1996 “domestic violence” in homelessness cases, has moved away from the stereotypical view that it is only about women being battered and actual physical contact. The term “domestic violence” should be interpreted via the Practise Direction (Residence and Contract orders: Domestic Violence) (No.2) (2009). It not only applies to physical violence but also “any incident of threatening behaviour, violence or abuse (physiological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”.  In the case Fitzpatrick v Sterling Housing Association (2001), it was stated that “where parliament uses a word such as “violence”, the factual circumstances to which it applies can develop and change over the years”. This basically meant that parliaments meaning of the word is not one which will remain the same.  The statutory purpose in this case would be to ensure that a person should not have to live in a home where there is risk to the children, herself or other members. Also they purpose is that domestic violence victims have a choice of whether they want to remain in the household or seek a new live through protection from criminal or civil law. In doing so, by accepting the family law definition of “violence” the court would achieve the purpose.

Lord Roger’s view on this case is that, he believed that it is not reasonable for a person to continue to occupy accommodation where someone may be subjected to physical harm. The purpose of the 1996 act was that a person at risk would automatically be homeless and that parliament’s intention would be no different where there may be psychological harm. And so such conduct would fall in to the term “violence” and “to conclude otherwise would be to play down the serious nature of psychological harm”.

It is essential to note Lord Brown hesitation and had doubts as to parliaments intention of the word “violence” to go beyond the boundaries of physical harm and that giving domestic violence a wider meaning would mean that they would overturn two Court of Appeal decisions where were seen to be “clear and unanimous”. Lord Brown did accept that it was vital to re-house victims of physical abuse to protect their physical safety however the same could not be said for the urgency for cases that involved behaviours short of physical violence. His Lordship did “did not feel sufficiently strong” to dissent from the majority and allowed the appeal.    

The judgement itself meant that the appellant would have to have her case reconsidered by the Borough of Hounslow. The decision in the case would apply to various legislations including the Family Law Act 1996 which states that you may be allowed to leave your accommodation if your partner has made a complaint on the basis of domestic violence. According to the Daily Mail’s family law expert Jill Kirby, the case was compared to the Humpty Dumpty character, who said that “words mean whatever he wanted them to mean” and the judiciary “risks undermining confidence in the legal system”. The decision brings difficulties as to the powers of senior judges and their readiness  to make changes to the law put in place by Parliament. Looking at the facts of the case, Mrs Yemshaw only left the house because she felt unloved and upset from her husband’s lack of involvement in the family life, he never actually raised his hand towards her. Some say the case leans towards a feminist view through Lady Hale’s leading judgement. I believe that the interpretation in this case was purely based on the judiciaries want to amend the statute, which can be seen to be unconstitutional and the courts have no right in doing so.  

The actual ever changing definition of “violence” has been used under various forms. It is now clearer that the changing societies in terms of international and national understanding of legislating interpretation of the term “violence” has gone beyond the underlining meaning of physical abuse. It is now about making sure that a person is not obliged to live in a place where they feel it would not just be a risk themselves but also a risk to their family. The reasoning and approach adopted by the Judges in Yemshaw case brings together the different areas of housing law and homelessness within the area of family law. Parliament has given consideration in introducing new legislation in relation to domestic violence that would draw in the idea of ‘priority needed’, instead of leaving it to the local Authorities to decide. It will provide for clarification and consistency in the areas of law such as policy, housing and homelessness, which is essential for domestic violence victims.

The Supreme Court decision in the case could hold difficulties for Local Authorities as they already have limited funds in providing accommodation, for now, a wider group of people of not just the physical aspect but also the physiological abuse. Statistics show that “there are significant financial costs which fall on the state as a result of domestic violence. Domestic violence is estimated to have cost then UK £25.3 billion in 2005-06”. Baroness Hale has applied a limited interpretation the term “violence”, and therefore the decision can potentially be remitted to the Supreme Court as they are not bound by their decision and can depart from it in future cases. They would need to consider whether the decision should be changed depending on a wider application of the term “violence”.

Word Count: [1,995]

Bibliography:

Books:

Jonathan Herring (2011): ‘Family law’, Fifth Edition

Websites:

• Published 27th January 2011: ‘Shout at your spouse and risk losing your home: It's just the same as domestic violence, warns woman judge’ <http://www.dailymail.co.uk/news/article-1350761/Women-entitled-council-house-partner-shouts.html#ixzz1flYxmNeT > accessed 28 November 2011
• Jay Shah (2011): ‘An analysis of the Supreme Court decision on domestic violence in Yemshaw v London Borough of Hounslow [2011] and the implications of the ruling’ 
• ‘Rights of Women’s response to the consultation ‘Proposals for the Reform of Legal Aid in England and Wales’ <http://www.rightsofwomen.org.uk/pdfs/Policy/Rights_of_Womens_response_to_the_Ministry_of_Justices_legal_aid_proposals_2011.pdf>
• Leanne Chapman: ' Domestic Violence after Yemshaw v London Borough of Hounslow [2011] UKSC 3’ <http://www.sjol.co.uk/submissions/publications/domestic-violence>
• Legislation: <http://www.legislation.gov.uk/ >

Articles:

• Practise Direction (Residence and Contract orders: Domestic Violence) (No.2) (2009)
• Shelter’s housing law update issue 68 (2011): ‘Homelessness’ 
• Jay Shah (2011): ‘An analysis of the Supreme Court decision on domestic violence in Yemshaw v London Borough of Hounslow [2011] and the implications of the ruling’ 
• Hayley Trim (2011): ‘Hayley Trim's Analysis: The view from the desk top’ 
• Richard Ekins (2011): ‘Yemshaw and the constitutionality of updating statutes’

Legislation:

Housing Act 1996

Family law Act 1996

Offences Against a Persons Act 1861

Cases:

Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27

Yemshaw v London Borough of Hounslow (2011) UKSC 3

Danesh v Kensington and Chelsea RLBC (2006) EXCA Civ 1404; (2007) HLR 14

R v Ireland (1998) AC 147

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