Which route to use?

In the mid-1990s two pieces of legislation were passed which aimed to provide some much-needed protection to vulnerable members of society. The combined effect of this legislation is now being seen to work well to limit harassment and recriminations after the breakdown of relationships, and to provide applicants with a choice of measures to prevent further alarm and distress being caused to them. These two Acts are the Family Law Act 1996 (FLA 1996) and the Protection from Harassment Act 1997 (PfHA 1997).

This article will consider the interrelation between the provisions of these Acts and how together they can provide a useful framework for one or many applicants. Legal advisers should be familiar with both statutes and consider the best option for a client based on the facts of each particular case.

The two schemes

The PfHA 1997 was born from a perceived need to protect people from stalkers '“ a concern that came to prominence in the early-to mid-1990s. However, its application was extended to a wider range of subjects than stalkers in short order as legal representatives and the judiciary tested the bounds of a powerful new Act. This culminated in last year's decision in Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34, where the House of Lords upheld an earlier decision of the Court of Appeal that the PfHA 1997 can provide for vicarious liability of the employer of a harassing employee, sounding in damages.

Part 4 of the FLA 1996 grew out of the Family Homes and Domestic Violence Bill laid before Parliament in 1995 and rolled into the Family Law Bill. The Bill was enacted in 1996 and Part 4 came into force thereafter. The majority of the FLA 1996, dealing with inter alia Law Commission proposals for 'no fault' divorce, remains not in force. Part 4 FLA 1996 has recently been substantially amended by the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004). The amendments took effect on 1 July 2007 and substantially reinforce the sanctions for breach of non-molestation orders (NMO) made from that date by providing that such breach is now a criminal offence.

Who is protected?

The PfHA 1997 may provide protection to any individual who successfully invokes it. This compares favourably to the scope of the FLA 1996 which affords protection to 'associated persons' and 'relevant children' only. 'Associated persons' is widely defined by s62(3), particularly following the addition of same sex cohabitants, and persons who have had 'an intimate personal relationship' of 'significant duration'. FLA 1996 is however a statute directed at families '“ or relationships '“ and their breakdowns and as such it does have obvious limits. A frequent situation arises where an ex-partner (A) threatens his ex (B) and her new boyfriend (C). If B and C are not living together and have no children then C has no recourse to protection from the actions of A, as he is not an associated person.

In contrast, C would be able to seek protection under the PfHA 1997 if the actions of A amounted to a course of conduct so as to enable C to avail himself of its provisions.

From what?

The PfHA 1997 requires the wrongdoer to have committed a 'course of conduct': two acts (or one act and a perceived second act) that would amount to harassment. Harassment is not comprehensively defined in the Act, but rather is said to include 'alarming a person or causing them distress'.

In his judgment in Majrowski Lord Nicholls set down the threshold for conduct which is prohibited under the 1998 Act when he stated: 'Where. . . the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order that would sustain criminal liability under s2 [of the Act].'

This threshold that has recently been restated by the Court of Appeal in Conn v Sunderland City Council (November 2007, unreported). Further, the subjective intention of the wrongdoer is also irrelevant. All that needs to be shown is that the course of conduct amounted to harassment of the victim and that the wrongdoer knew or ought to have known that this was so (s1(1)).

Despite the reference to criminal liability within the paragraph cited above, the claimant under the 1997 Harassment Act need only prove their case to the civil standard (Hipgrave v Jones [2004] EWHC 2901 (QB)). However the Court of Appeal in Conn re-emphasised the need for the conduct in question to be both 'oppressive' and 'unreasonable'. The conduct must, in short, be enough to found criminal liability under s2 of PfHA 1997, despite the lower burden of proof of demonstrating this.

The FLA 1996 provides that a NMO can be granted to prevent a person from molesting another person who is entitled to protection. 'Molesting' is left undefined. Case law pre-dating the FLA 1996 compares molesting to pestering, annoying, inconveniencing, or harassing. That said, the court has a wide discretion in considering whether the conduct complained of, if proved, would amount to molestation. It is clear that molestation does not need to involve violence (although violence will almost always be molestation) but can include phone calls or text messages, the leaving of unwanted cards or presents at the former matrimonial home, or causing or encouraging other people to pester the applicant.

Therefore, while the pool of persons who can avail themselves of the protection of the FLA 1996 is more restricted than the PfHA 1997, the hurdle of demonstrating entitlement to protection is lower. The actions of the respondent in molesting the applicant do not have to be 'criminal' in and of themselves (although following DVCVA 2004, the making of a non-molestation order effectively criminalises those acts), whereas as the law currently stands, the acts amounting to a course of conduct for harassment must each be acts which could be said to be 'criminal'.

How are they protected?

The PfHA 1997 allows the court to grant an injunction, a breach of which is a criminal offence (carrying with it a sentence of up to five years imprisonment on indictment or six months upon summary conviction). It is also open to the claimant in the alternative, where a breach has occurred, to seek to have a warrant of arrest issued by the court, whereby the defendant will be arrested and brought before the court for contempt of court. However, if the defendant has been convicted of the offence of breaching the injunction he cannot be subsequently found guilty of contempt, or vice versa (s3(7) and s3(8)). Criminal proceedings can also be instigated for harassment.

Unlike the FLA 1996 the PfHA 1997 also allows for the court to award damages for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment (s3(2)). Seemingly for compensation to be awarded under the PfHA 1997 there is no need for a recognised psychiatric illness to be established, as is required in personal injury claims. Instead the court can award damages for anxiety or stress, although such awards are likely to be confined to particular circumstances where such an award is justified, and will not be awarded as a matter of course.

The FLA 1996 is not designed to provide civil damages but to prevent the recurrence of acts of molestation. Therefore the remedy has been to provide for sanctions in the form of arrests for breaches of orders followed by the production of the respondent before a court within 24 hours of his arrest. The court then had the power to punish the respondent for contempt of court. If the court did not attach a power of arrest to the order, it was for the applicant to apply to commit the respondent.

From 1 July 2007, however, the sanction for breach of a NMO was significantly increased. By the new s42A(1) (inserted by DVCVA 2004), a person who without reasonable excuse does anything that he is prohibited from doing by a NMO commits a criminal offence, making him liable on conviction to imprisonment for up to five years on indictment or 12 months on summary conviction. Powers of arrest are prospectively abolished, and all NMOs carry this automatic criminal sanction. The potential penalty for a breach of an NMO is thus broadly similar to that for a breach of a PfHA 1997 injunction.

The advisability of criminalising breaches of orders designed to regulate family-type relationships, with a far lower threshold needed to obtain such orders, is likely to be widely debated in other forums. It does however appear unfortunate that such disputes will be removed from family courts and simply lumped together as criminal cases.

Tactical considerations

The PfHA 1997 is governed by the Pt 8 procedure under the CPR, with the civil enforcement provisions being set out in Pt 65 of the Rules. Obtaining the protection of an injunction under PfHA 1997 can therefore be a somewhat lengthy process when compared with the relative ease of obtaining an NMO ex parte. Whilst there is no presumption that protection should be granted under the FLA 1996, generally speaking if a NMO is granted ex parte it is likely to remain in force until the conclusion of the proceedings (and thereafter for a specified time, if the applicant's case is made out). Whether this will remain the case following the criminalisation of breaches is yet to be seen but anecdotal evidence suggests that courts are less willing to leave such orders in place without good reason.

When considering whether to issue an application under PfHA 1997 or FLA 1996 regard must obviously be had to the relationship of the parties. In cases where they are associated persons, the FLA 1996 route will usually be the most appropriate, unless there is an element of damage for which compensation is required.

That said, it appears likely that the courts will tighten the criteria for making such orders over the coming months as the criminal sanctions begin to take effect. Each case should rest on its facts but practitioners should be aware of the need to consider the PfHA 1997.

Where the parties are not 'associated', PfHA 1997 is likely to be the only available option. In such cases (which could include, for instance, a 'neighbour from hell', a vindictive ex-partner's new boyfriend, or a seriously abusive line manager) injunctive relief or a compensatory award can be sought. In certain cases it may be more appropriate to approach the police who can bring criminal harassment proceedings, or apply for an Anti-Social Behaviour Order.

The PfHA 1997 has a valid, if somewhat underused, role to play in cases that have traditionally been seen to be the domain of the FLA 1996. Indeed, the potential for financial compensation as well as the wider scope of the PfHA 1997 may mean that in time it is used more to regulate relationships after their breakdown than it has been up to now, particularly given the criminalisation of NMOs and the potential for their availability to be commensurately reduced. Practitioners should also be aware of the uses of PfHA 1997 in situations were FLA 1996 provides a lacuna, because the affected party is not an associated person.