New provisions making a breach of a non-molestation order a criminal offence under the Domestic Violence, Crime and Victims Act 2004 are being brought into force from 1 July by amendments to the Family Proceedings Rules 1991 and the Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991 (SI 2007 No 1622 and 1628).
The amendments to the FPR reflect the amendment made by s1 of the 2004 Act to Part IV of the Family Law Act 1996 providing that breach of a non-molestation order is a criminal offence and subject to more stringent sanctions including the maximum sentence for breach from two to five years.
Repeals made in Schedule 11 and consequential amendments made in Schedule 10 to the 2004 Act also limit the power of the court to attach a power of arrest only to an occupation order.
In addition to criminalising the breach of non-molestation orders under the Family Law Act 1996, the 2004 Act extends the availability of restraining orders under the Protection from Harassment Act 1997 and makes common assault an arrestable offence.
The policy background was that by transferring breaches to the criminal from the family courts better use would be made of existing sentencing powers and would send a clear message that such behaviour is unacceptable.
A non-molestation order is a protective injunction which forbids the respondent from using or threatening violence against the applicant (and any children) and from instructing, encouraging or in any way suggesting that any other person should do so. It can also forbid the respondent from intimidating, harassing or pestering the applicant and instructing, encouraging or in any way suggesting that any other person should do so. Previously these orders would often have a power of arrest attached due to the violence involved. This meant that if the respondent breached the injunction by repeating the violence, he would be taken back before the court that made the order and may be sent to prison for contempt of a civil court.
An occupation order is also a protective injunction but this order sets out the future occupation of the home shared by the couple and their children to protect any party or children from domestic violence. The order can exclude an abuser from the property altogether, or divide the property to exclude him from part of the property. If a respondent has already left the property, an occupation order may be used to prevent him from re-entering and/or coming within a certain area of the property. It is rarer for an occupation order to have a power of arrest as this measure has to have evidence of violence. However, if an occupation order with a power of arrest is breached, the respondent would be taken back before the court that made the order and may be sent to prison for contempt of a civil court.
Previously courts could make a single injunction covering parts of both non-molestation and occupation orders as the provisions on and sanctions against breach of the injunction were the same. The amendment made by section 1 of the 2004 Act effectively separates the two types of injunction, providing that breach of a non-molestation order is a criminal offence.
The criminalisation of breach of a non-molestation order was introduced by s.1 of the 2004 Act which inserted a new s.42A into the 1996 Act. As the maximum penalty for the offence is 5 years' imprisonment, the offence will be arrestable under section 24(1) of the Police and Criminal Evidence Act 1984. This enables the police always to arrest for breach of a non-molestation order, without the need for the courts to attach a power of arrest, or for the victim to apply to the civil court for an arrest warrant. Under section 42A(2), an individual would only be guilty of a criminal offence if he is aware of the existence of the order.
If the victim does not want to pursue criminal proceedings, the option still remains for them to apply for an arrest warrant for breach of a non-molestation order in the civil court.
If a non-molestation order made before 1 July 2007 is breached, enforcement will be under the existing regime by which the perpetrator will be brought back before the family court that made the order.
If the victim wishes to pursue civil rather than criminal proceedings, or if the case falls within the transitional arrangements because the order breached was made before 1 July, the penalties for contempt remain a maximum of 2 months' imprisonment in a magistrates' court and 2 years' imprisonment in a county court.