legal remedies to domestic violence

The complexities of the perennial problem of domestic violence have continued to exercise policy and law makers, with successive governments attempting to address this increasing social problem through legislative measures. The relationship between law and social behaviour has always posed a difficult balancing act for legislators, with any social issue or trend inherently proliferating at a rate beyond the capacity of effective responsive legislation. Indeed successive governments have often made piecemeal changes to the law relating to remedies available for domestic violence, thereby creating a disharmonious framework for effective enforcement. This in itself underlines the intrinsic problem of implementing satisfactory legislative measures for social issues, which shape political agendas.

The Domestic Violence, Crime and Victims Act 2004 (?the Domestic Violence Act?) is often cited as the primary piece of legislation which specifically addresses domestic violence. The Domestic Violence Act criminalizes domestic violence and implements a wide range of criminal offences, which come under the umbrella of domestic violence, including sexual and physical assault, harassment and criminal damage. However, aside from the provisions in the Protection of Harassment Act 1997 which cover harassment, physical or verbal threats and fear of violence, the Domestic Violence Act has been criticised for failing to address the reality of cumulative patterns of violent behaviour, a lacuna which can be exploited by perpetrators of violence.

Furthermore, the reality is that there are still many pieces of legislation offering remedies for domestic violence and despite the well intended measures of policy makers in attempting to address domestic violence, there is still a plethora of ?anomalies and loopholes inherent within the laws? applied in practice.

This analysis will critically consider the current remedies available to victims of domestic violence and highlight the flaws and potentially fatal implications for victims. I will further evaluate the interaction of the various pieces of legislation in offering remedies to victims and consider whether opportunities were missed in the implementation of the Domestic Violence Act, with recommendations for improvements going forward.

Firstly, it is necessary to consider the implementation of the Family Law Act 1996 (FLA), which fuelled the recent wave of policy driven legislation aimed at addressing domestic violence. The FLA was intended to codify the previous system into a more effective unified framework for victims of domestic violence. In the short term, the FLA Part IV provisions reinvigorated two civil injunctive orders; namely the nonmolestation order and the occupation order, which victims can apply for before magistrate, county or high court. This application can be made within 48 hours of an attack in order to protect the victim or an affected child.

The application of the non-molestation order and occupation order have been expanded to cover a wider category of people who can apply for the orders, with added rights of third party applications incorporating powers of arrest and warrant for arrest. Section 42 of the FLA deals with applications for non-molestation injunctive orders. These prohibit the respondent from molesting an applicant that is ?associated? with the respondent and/or prohibits a respondent from molesting a relevant child.

The definition of ?associated person? is wide in covering a spouse, cohabitee or a relevant child, all of whom can apply to the magistrate court, county or high court for this order either as a standalone application or in connection with other family proceedings. If granted the order is usually imposed for a specified period or until a further order is granted. The fact that applications for a non-molestation order can be heard ex-parte is essential in ensuring that this remedy is easily accessible to victims of domestic violence, further strengthened by the court's power to attach a power of arrest to the order.

With regard to occupation orders, section 33 of the FLA again enables ?associated persons? to make an application however the ability to secure an order is dependant on various factors such as the nature of tenancy, tenure, marital status, which of the parties has matrimonial home rights and whether there are children. As such, the occupation order rights apply selectively with different treatments depending on the nature of the relationship, which undermines the purpose of the law to ensure protection against domestic violence.

Furthermore, whilst the overriding aim of the FLA provisions is to strengthen civil law protection to victims of recurring violence, the non-molestation order and occupation orders are not without shortcomings.

Firstly, in the long term, particularly in respect of domestic violence in marital breakdown, the ?cooling off period? provisions in the FLA intended to encourage resolution and reconciliation have arguably exacerbated the problems faced by victims of domestic violence in divorce proceedings. This is further compounded by the inherent limitations of occupation orders which solely address occupation rights in a dwelling without appropriate consideration to financial commitments, which can operate against a domestic violence victim. For example, in the case of Nwogbe v Nwogbe (which involved an application for an occupation order) it was held that when making an occupation order there was no power to enforce an order to include the payment of rent and other outgoings on the basis that such orders did not come under the Administration of Justice Act 1970. The result of this decision highlights the inherent limitations of occupation orders as a remedy in practice with a victim arguably left homeless due to technical loopholes.

Moreover, the ?associated person? criteria in the FLA ignore the broad range of circumstances covered by domestic violence. It excludes people in a relationship who do not live together, which is increasingly common and as such, clearly jeopardises the safety of domestic violence victims in such circumstances. The Domestic Violence Act was intended to address this problem and expressly extends the ?associated person? definition to same sex couples and non-cohabiting couples. Whilst clearly a welcome move in addressing the changing dynamic of family relationships, the practical application of the Domestic Violence Act has been criticised for significant problems in consistent implementation with the judiciary's continued failure to treat crimes of domestic violence seriously.

Alternatively, the other option for such victims is to obtain injunctive relief under the Protection of Harassment Act 2007, which does not include automatic powers of arrest, again resulting in selective enforcement of viable and meaningful protection for victims of violence dependant on relationship status.

This is further compounded by immigration legislation, which has been criticised for directly undermining the Government's commitment to protecting all victims of domestic violence17. For example, a victim with insecure immigration status will not be entitled to public funds such as benefits or social housing18. Notwithstanding the implementation of Immigration Rules19 which enable someone within a two year probationary period to apply for leave to remain in the UK if they have required evidence of domestic violence20, the reality is that such women often due to cultural and language barriers cannot access a place of safety or seek support, perpetuated by the inability to meet rent or living expenses, 21which in turn impacts their access to refuges and alternative shelter.

Furthermore, the distinction between ?entitled? and ?non-entitled? categories under the ?associated person? definition in the context of occupation orders blatantly marginalizes unmarried non-cohabiting couples without children and same sex couples by ?conferring vastly de-limited rights?22. The extension of ?associated persons? in the Domestic Violence Act only applies to non-molestation orders and as such, it is submitted that the existence of five different kinds of occupational order defeats the primary objective of the order. Indeed, it has been commented that ?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?23.

Overall, the civil injunctions offer temporary protection with the continued problem of availability of legal services funding to obtain an order in practice24. This is further compounded by the problem of effective enforcement and sanctions for breach of injunctions by the respondent. Women's Aid highlighted this by reference to comments of a victim during the Domestic Violence Act consultation process stage, who stated that without sanctions for breach, an injunction ?is no more use than waving a till receipt from ASDA25?.

Whilst the Domestic Violence Act now renders breach of a non-molestation order a criminal offence with a maximum penalty of five years, it failed to implement recommendations for criminalizing occupation orders or removing the limit of the length of such orders where violence was threatened, creating the same problems of enforcement for breach of an order as highlighted before implementation.

Moreover, although housing legislation such as the Housing Act 1996 and the Homelessness Act 2002 impose a positive legal duty to provide victims with advice and temporary accommodation if there is actual or threatened homelessness due to domestic violence26, it is questionable whether these provisions are sufficient to address the deficiencies in occupation order provisions as practice has been drastically inconsistent between local authorities in complying with law and government guidelines27.

The Protection from Harassment Act 1997 imposes a general prohibition on harassment, which is an offence punishable both in civil and criminal courts. Civil remedies include injunctive protective orders and Section 3 of the Act creates a statutory tort of harassment enabling a potential claim for damages caused by harassment. However, the imagery of ?waving a till receipt from ASDA? appears to be a symptomatic problem permeating all pieces of legislation intending to address domestic violence. Similar to occupation orders, there are no automatic powers of arrest attached to an order and a victim has to wait for the perpetrator to commit a breach, before having the right to apply for a warrant for arrest.

Whilst clearly offering access to a wider range of people in theory, the burden of proof requires a claimant to establish that the offence of harassment was committed ?by following a course of conduct which amounts to harassment or causes of fear of violence to another person28? and that the perpetrator knows that their conduct would cause a fear of violence. Furthermore, the conduct must have been committed on at least two occasions, rendering it inherently difficult to prove harassment for the purpose of a civil hearing29.

This is further compounded by the difficulty in proving that the perpetrator knew that their conduct would cause a fear of violence or constitute harassment. This was evidenced in the case of R v Colohan30 where the Court of Appeal was required to consider whether the schizophrenia of the appellant rendered the conduct outside the parameters of the Protection from Harassment Act 1997. It was asserted by Mr Justice Hughes that ?to exclude a mental illness from the Act would be to remove from its protection a very large number of victims and indeed run the risk of significantly thwarting the purpose of the Act. We do not believe that Parliament can have meant this?31.

Whilst clearly a sensible decision, the Court of Appeal nevertheless took into account the mental illness of the appellant in terms of sentencing. Although this may have been necessary in context of the particular facts of the case, it nevertheless highlights the difficulties in proving intent under the 1997 Act and the practical problems of enforcement even if harassment has been proved as required. Moreover, it is likely that a significant proportion of domestic violence victims cannot afford the costs of instituting proceedings against the perpetrator32, further compounded by increasing restrictions on legal aid.

Any legislative measure is only as effective as its implementation and a significant hurdle in domestic violence cases is the intimidation of the witness. As such, the Domestic Violence Act introduced a statutory Victims Code of Practice and Commissioner for Victims and Witnesses 200633, which must be complied with by criminal justice agencies nationally. However, the Women's Aid recommendation that all domestic violence victims automatically be given the status of vulnerable witness in legislation with a right to special measures for giving evidence was rejected34.

Overall, any legislative measures having as their objective the protection against domestic violence are welcome. However as stated above, any legislative measure is only as effective as its practical implementation and as such, it is submitted that whilst the Domestic Violence Act is undoubtedly important in strengthening police powers and criminalizing domestic violence, the Act appears to have missed some vital opportunities35.

Firstly, consistency needs to be maintained between the application of nonmolestation orders and occupation orders in terms of the definition of ?associated persons? to reflect the changing dynamic of family relationships. It is clearly undesirable for the law to offer selective protection against domestic violence resulting from relationship status. Furthermore, the rigidity of the variants of occupation orders available and the lack of effective sanctions for breach again undermine the purpose of these orders as a protection mechanism for victims in adverse social circumstances.

In line with the recommendations of Women's Aid36, further measures need to be implemented to ensure protection of children in domestic violence and access of victims to adequate funds to facilitate equal access. However, any such legislative measures need to be supported by a national domestic violence strategy which is consistently applied in order to ensure cohesion between the various pieces of legislation governing various circumstances affected by domestic violence in relationships.

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