Challenging abuse

Family practitioners will be familiar with the two forms of injunctive relief available to victims of domestic violence under Part 1V of the Family Law Act 1996 (FLA). A victim of domestic abuse can apply for a non-molestation injunction under s42 of the FLA and/or an occupation order under s33/38. The Domestic Violence, Crime and Victims Act (DVCVA) 2004 has made a number of changes to this area of the law.

Breach of a non-molestation order as a criminal offence

Prior to the DVCVA the court had the power to attach a power of arrest to a non-molestation order and an occupation order. The DVCVA inserted a new s42A into the FLA. Since the 1 July 2007 a respondent who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of committing a criminal offence. It thus follows that a power of arrest can now only be attached to occupation orders.

A respondent who breaches a non- molestation order is liable on conviction on indictment to imprisonment for a term not exceeding five years, or a fine, or both. On summary conviction the maximum period is 12 months or a fine not exceeding the statutory maximum or both.

If the police for whatever reason decide not to arrest the respondent for an alleged breach of a non-molestation order the victim can still bring proceedings for committal for contempt proceedings under Order 29 of the County Court Rules and the Family Proceedings Rules.

A victim of domestic violence can also seek to punish a breach of a non-molestation order by applying for a warrant of arrest under s47 (10) of the FLA.

However, a respondent should not face both a criminal sanction for breach of a non-molestation order and proceedings for contempt of court in respect of the same conduct. S42A (3) says that if a person has been convicted of a criminal offence under s42 in respect of any conduct that conduct is not punishable as a contempt of court. S42A (4) says that a person cannot be convicted of an offence under s42 in respect of any conduct which has been punished as a contempt of court.

Time will tell as to how effective the criminalisation of a breach of a non-molestation order will be. However, it is clear that practitioners who are instructed by victims of domestic abuse will have to advise those victims that if a non-molestation order is made and then breached the perpetrator of the abuse may face criminal sanctions and a criminal record.

This in turn could have an effect on the abusers' livelihood which, in the vast majority of cases involving violence within the immediate family, may have an adverse affect on the victims of the abuse. The fear is that this in itself may be enough to deter victims of domestic abuse from seeking the protection that the law offers them.

How does this affect ex parte non-molestation orders?

In practice a victim of domestic violence requires immediate protection. S45 of the FLA gives the court the power to make ex parte occupation and non-molestation orders if it is just and convenient to do so.

In deciding whether or not to make an ex parte order the court will consider all the circumstances including 'any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately' (s45 (2) (a), The court will also consider whether there is any reason to believe that the respondent is evading service of proceedings and whether the applicant will be deterred or prevented from pursuing the application if an order is not made immediately.

If the court makes an ex parte order it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing, (s45 (3)).

The DVCVA inserts a new s42A (2) which provides that if an ex parte non-molestation order is made a person can be guilty of a criminal offence 'only in respect of conduct engaged in at a time when he was aware of the existence of the order'. The definition provided by s42A states that the respondent need only be aware that an order exists. The respondent does not need to be aware of the exact terms of the order.

Once a respondent has been served an order they are required to lodge evidence at the local police station, thus reducing the chance of a breach. The Family Proceedings Rules 1991 have been amended by the Family Proceedings (Amendment) Rules 2007. The amended rules provide that where the court has made a non-molestation order the following documents shall be delivered to the applicant's local police station:

• a copy of the order in Form FL406 (occupation orders) and FL404A (non-molestation orders) ; and
• a statement showing that the respondent has been served with the order or infor-med of its terms (whether by being present when the order was made or by telephone or otherwise).

What is the standard of proof that the court must apply in contested non-molestation injunction applications?

At the present time there is some uncertainty as to the standard of proof that should be applied in cases involving a breach of a non- molestation order. In Manchester CC v McCann [2002] 4 All ER 593 HL, the House of Lords considered the evidential burden of proof that should be applied in a case involving a breach of an Anti-Social Behaviour Injunction (ASBO) under s1 of the Crime and Disorder Act 1998. It was acknowledged that breach of an ASBO constituted civil proceedings and ordinarily the standard of proof applicable in civil proceedings was the balance of probabilities. However, breach of an ASBO entailed serious criminal consequences and as such the criminal standard of proof should apply. In Hipgrave v Jones [2004] EWHC 2901 (QB), the court had to consider the appropriate standard of proof to apply in a case involving a breach of an injunction under s3 of the Protection from Harassment Act 1997. The court distinguished McCann on the basis that an injunction under the 1997 Act was a private remedy sought by an individual as opposed to a public authority. The Court of Appeal in the recent decision of Re JC (A Child) [2007] EWCA Civ 896 considered that the criminal standard of proof should apply in a case involving breaches of non- molestation and occupation orders. At the time of writing this article a transcript of the judgment was not available.

Amendments to the definition of associated persons

To apply for a non-molestation order and an occupation order the applicant must show that she falls within a defined class of persons known as 'associated persons'. The definition of an associated person is contained in s62 of the FLA. The DVCVA amends the definition of associated persons in three respects.

Cohabitants to include same sex couples

S3 of the DVCVA amends s62 (1) (a) so that cohabitants are two persons who although not married to each other, are living together as husband and wife or (if of the same sex) in an equivalent relationship.

Protection provided to non-cohabitating couples

S4 of the DVCVA provides that a person is associated with another person if 'they have or have had an intimate personal relationship with each other which is or was of significant duration'. According to the comments made by the parliamentary under-secretary of state at the Standing Committee stage it was not the government's intention for this section to include platonic friendships or brief sexual encounters. The key elements of the section are intimacy and duration.

Repeal of s41 of the FLA

The power of the court to make occupation orders can be found in sections 33 to 38 of the FLA. The appropriate section within which an applicant will fall will depend upon whether she is or was married to the respondent, whether they cohabited and their legal interest in the property. Section 41 of the FLA provided that where the parties were cohabitants or former cohabitants the court when considering the nature of the parties relationship was 'to have regard to the fact that they had not given each other the commitment involved in marriage'. Section 2(1) of the DVCVA repeals s41.