Legal Safeguards Against Domestic Abuse

“Domestic abuse is a vile, indefensible scourge in our society.” So said Mr Justice Peel in a recent case in the High Court in London (to which I will return in a moment).

Domestic abuse is indeed all of those things. It is something that no one should have to suffer and whilst the law cannot unfortunately prevent all domestic abuse, it does provide very important protections for victims.

In this article I will look at the protections that exist and how to obtain them. I will also look at recent developments aimed at improving legal protection for abuse victims and how domestic abuse can affect other issues which arise in family law cases, in particular, when agreeing arrangements for children.

Before I do that, I will go through what constitutes domestic abuse, as victims may not always understand what they are experiencing, is in fact, domestic abuse.

What is domestic abuse?

The term ‘domestic abuse’ only came into general usage relatively recently. Before that, most people used the term ’domestic violence’. The term  ‘domestic violence’ constitutes physical violence or at least a threat of physical violence. It is now recognised that abuse in a domestic context, can include much more than physical violence.

In 2021 parliament passed the Domestic Abuse Act which provided a full statutory definition of domestic abuse.

The first thing that the definition sets out is that the behaviour of one person towards another person (the “victim”) is domestic abuse if:

1. The two people are each aged 16 or over, and are personally connected to each other, and

2. The behaviour is abusive.

“Personally connected” is what makes the abuse, domestic as opposed to any other type of abuse which occurs between two unconnected individuals. The Act states that two people are “personally connected” to each other if any of the following applies:

(a) they are, or have been, married to each other;

(b )they are, or have been, civil partners of each other;

(c) they have agreed to marry one another (whether or not the agreement has been terminated);

(d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);

(e) they are, or have been, in an intimate personal relationship with each other;

(f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child; or

(g) they are relatives.

The Act sets out that behaviour is “abusive” if it consists of any of the following:

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour (such as preventing the victim from communicating with friends or family);

(d) economic abuse (see below);

(e) psychological, emotional or other abuse.

It should be noted that it does not matter whether the behaviour consists of a one incident or a number of incidents (a course of conduct).

“Economic abuse” means any behaviour that has a substantial adverse effect on the victim’s ability to:

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.

Lastly, the Act sets out that behaviour may be behaviour “towards” the victim despite the fact that it consists of conduct directed at another person, for example, the victim’s child.

As will be seen, “domestic abuse” covers a wide range of behaviours that will be recognised by the courts as abusive.

Exactly how the court will protect a victim of abuse will depend on the circumstances but there are basically two types of order that the court can make (save for the new orders referred to below); a non-molestation order and an occupation order. I will now look at these below.

Non-molestation orders

A non-molestation order is an order prohibiting one party from molesting, threatening, or otherwise harassing the other party, or a relevant child.

In practice, a non-molestation order is likely to be much more specific. For example, it may state that the perpetrator of the abuse must not use or threaten violence against the victim, that they must not intimidate, harass or pester the victim, that they must not contact or attempt to contact the victim, or that they must not damage, attempt to damage or threaten to damage any property owned by or in the possession of the victim.

In deciding whether to make a non-molestation order and if so in what form, the court will have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and of any relevant child.

A non-molestation order may be made for a specified period, or until further order.

Occupation orders

An occupation order is an order that regulates the occupation of the parties’ home, for example by requiring one party to vacate or not to return to the matrimonial home (or, in the case of an unmarried couple, the home in which they both lived).

An occupation order may include provisions for such things as who should maintain the home, who should pay the mortgage/rent/other outgoings and who can keep and use the furniture.

In deciding whether to grant an occupation order the court will consider all of the circumstances of the case including the housing needs and resources of both parties and any children, the financial resources of both parties, the likely effect of making an order, or not making an order, will have on the parties and any children and the conduct of the parties in relation to each other.

The order will state how long it is to last, which will depend on the circumstances of the case.

Obtaining legal aid

You may be able to obtain legal aid to cover the legal costs involved in applying for non-molestation and occupation orders.

To obtain legal aid you will need to provide the Legal Aid Agency with evidence in writing of the domestic abuse.

The evidence can come from one or more of various specified sources, such as the court, where a previous domestic abuse order has been made, the court has made a finding of domestic abuse against the abuser or where the abuser has been convicted of a domestic violence offence; the police, where they have had dealings with the abuser such as arresting or cautioning them for a domestic violence offence; or a doctor, where they have examined the victim and found that they have suffered injuries consistent with being a victim of domestic violence.

Domestic abuse and other family law issues

Domestic abuse can be an issue on its own but it can also be relevant to other issues on breakdown of a relationship.

Allegations of domestic abuse are often raised when making financial arrangements on divorce. However, such allegations, even if proved, are unlikely to have a significant bearing on the outcome, unless they are of a very serious nature.

Where abuse allegations can be very relevant is in connection with making arrangements for children.

It is very common for one parent in child arrangements proceedings to make allegations of domestic abuse against the other parent. If there has been domestic abuse then it could have a serious impact upon any order that the court makes. The court will therefore want to investigate the allegations and establish whether or not they are proved.

The court will often arrange a separate hearing to investigate abuse allegations, known as a ‘fact-finding’ hearing. The court will take into account the findings made at such a hearing when deciding what final child arrangements orders to make.

Sometimes the fact that allegations of abuse have been made may affect the child arrangements, even before the court has investigated the allegations. This was demonstrated in the recent case before Mr Justice Peel, mentioned above. In that case the father had been having overnight staying contact with his 8 year-old daughter. The mother applied to the court to have the contact suspended, alleging that there had been abuse by the father, including physical assault and coercive and controlling behaviour. The judge decided that there should be a fact-finding hearing to consider the mother’s allegations. He also ordered that the father’s overnight staying contact should continue. The mother appealed against this decision. Mr Justice Peel heard the appeal and found that the judge had been wrong to allow the overnight contact to continue. Accordingly, the appeal was allowed and the order for overnight staying contact was discharged.

New Developments

The Domestic Abuse Act referred to above introduced two new protections for victims of domestic abuse, Domestic Abuse Protection Notices (‘DAPNs’) and Domestic Abuse Protection Orders (‘DAPOs’).

A DAPN is issued by the police following domestic abuse incidents. It places conditions on the perpetrator, such as, staying away from the victim for a period of time, leaving the victim’s home for a specified period and stopping all contact with the victim. A person who breaches a DAPN may be arrested and taken before a magistrates’ court.

A DAPO is a court order that can impose more extensive conditions on the perpetrator, including,  banning the perpetrator from entering a specific address or area, requiring the perpetrator to attend an appropriate rehabilitation programme or putting restrictions on the perpetrator’s contact with the victim. The breach of a DAPO is a criminal offence.

DAPNs and DAPOs are not yet available across England and Wales. They are currently being trialled in various parts of the country.

Further information

If you are the victim of domestic abuse then it is essential that you seek expert legal advice at the earliest opportunity. For further information about domestic abuse and how we can help you if you are experiencing it, see this page.