Domestic Violence
DCA guide to civil remedies and criminal sanctions
What
remedies and sanctions are available?
A number of options are
available in the courts. The different routes taken by survivors
will depend on various factors, including
•
the severity and/or nature of the violence or harassment;
•
the familial relationship between the abused and the abuser;
•
there is a stricter burden of proof required by the criminal courts
compared to the civil courts. In criminal proceedings a case has
to be proved “beyond reasonable doubt” whereas in
civil proceedings the court will arrive at its decision on the
“balance of probabilities”.
•
the wishes of the survivor about the protection they require from
the law; and
•
the actual and perceived protection the law can deliver in practice,
as well as the availability of appropriate support services.
Part I of
this guide explains the steps that victims of domestic violence
can take to pursue civil action in county courts, family proceedings
(magistrates’) courts, or the High Court.
PART
I: CIVIL REMEDIES
The
legislation
There are
five Acts that apply in varying degrees to domestic violence in
the civil jurisdiction:
•
Part IV of the Family Law Act 1996 (FLA 1996);
•
The Protection from Harassment Act 1997 (PHA 1997) – which
also contains criminal sanctions;
•
The Housing Act 1996 (HA 1996);
•
The Children Act 1989 (CA 1989); and
•
The Adoption and Children Act 2002 (AChA 2002).
We have
set out the main civil remedy provisions under each Act and offer
guidance on how to pursue a specific course of action.
Part IV
of the Family Law Act 1996 (FLA 1996) provides a civil remedy for
molestation, violence and occupation. Its purpose is to protect
people who experience domestic violence in a family relationship.
There are strict criteria about who can apply for an injunction
or occupation order to protect themselves under this Act; these
are outlined below.
Under the
FLA 1996, the court can grant occupation orders and nonmolestation
orders.
An occupation
order regulates the 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 accommodation.
If a respondent has already left the property, an occupation order
may, therefore, be used to prevent him from re-entering and/or coming
within a certain area of the property.
There are
numerous types of occupation order (see below) but the most common
will say something along the lines that the respondent must leave
the applicant’s property and, having left the property, must
not enter or attempt to re-enter it, or come within a specified
distance. The order will also include notice of any further hearing
dates and the length of time the order is to last. Generally, the
duration of these orders is between six months and one year but
it can be until “further order”.
Before issuing
such an order the court will apply the “balance of harm”
test, which includes the concept of significant harm. This is a
test to find out which person and/or child or children living with
them will be at most risk if an order is made, or is not made. If
the court applies the balance of harm test in the case of spouses
or former spouses, it has a mandatory duty to make an order. The
court also assesses the party’s circumstances according to
the ‘relevant factors’ set out in section 33 (6) of
the Act.
A non-molestation
order is used to restrain someone from causing or threatening violence
to the applicant or to any children, or from molesting them. The
Act does not define molestation but it can include intimidation,
pestering, threats and harassment. The actual wording of non-molestation
orders forbids the respondent from using or threatening violence
against the applicant and 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. This wording is also used to protect any children
named in the application from the respondent.
The protection
of children from violence, or the threat of violence, applies to
any “relevant child”. A relevant child is defined as:
•
Any child who might be expected to live with either of the parties
involved;
•
Any child who is the subject of adoption or Children Act proceedings;
and
•
Any other child whose interests the court considers relevant.
The criteria
for who can apply for an occupation order, and the types of orders
which the courts can make, are more complicated than those relating
to non-molestation orders and are dealt with in more detail below.
If you apply for a non-molestation order you may also apply for
an occupation order, using the same application form, provided your
case meets the relevant criteria.
Section
60 of Part IV of FLA 1996 concerns ‘third party orders’.
This section gives the Lord Chancellor powers to enable a prescribed
person, or category of person, to act on behalf of victims of domestic
violence in obtaining occupation or non-molestation orders. However,
Section 60 is not currently in force.
Orders are
either ‘on-notice’ or ‘without notice’.
These terms are also explained below.
Applying
for non-molestation and occupation orders
Who
can apply?
A
list of those who are eligible to apply for a non-molestation and/or
occupation order under the FLA 1996 is at Annex A. The principle
is that eligibility is based on association through family relationships
and/or cohabitation. In theory, children under 16 years old may
apply for an order under FLA 1996 but they need permission to do
this from the High Court. If this is granted, they will require
substantial assistance from all the agencies involved. To grant
permission, the court must be satisfied that the child has sufficient
understanding to make the necessary application. If the court grants
permission, the case will be transferred to a county court to deal
with the non-molestation and/or occupation order.
If the applicant
is under 18 years old they are required to have a “next friend”
to assist them with the application. The next friend does not need
to have a legal background or professional qualification.
Where
to obtain orders
An
application can be made for either or both of these orders in any
county court with family jurisdiction and in a magistrates’
court that is also a family proceedings court (FPC). Particularly
complexes cases that start in FPCs are sometimes transferred to
the county courts. There are also certain types of applications
for occupation orders that cannot be dealt with by magistrates.
If a person involved in an application wishes to appeal the order
to transfer they must lodge their appeal with the appropriate court
within 14 days of the original order being made.
How
to apply
Applicants
can instruct a solicitor (preferably one with experience of domestic
violence work) make an application direct to the court itself. If
solicitors are instructed it will be more expensive to bring the
case to court. There are no restrictions about applying in person
(on one’s own behalf) but, if applicants do this, they must
be prepared to complete the relevant forms and statements themselves
and to explain their case before the court. Court staff can help
by explaining court procedures, but they cannot provide legal advice
on the merits of individual cases, or give advice about probable
outcome.
What
does the process cost?
At present the cost of
issuing a Family Law Act (FLA) application in the county court is
£50 – there is no fee for an application made in the
magistrates’ courts. Any subsequent applications made under
the Act are also £50. Applicants who decide to act on their
own behalf have to pay this fee when they file the application.
However, they might be exempt or have some remission from paying
the fee – as explained in the Court
Service Leaflet EX160A, court fees do you have to pay them?
An officer of the court will waive the fee if the case meets one
or more of the following the criteria:
•
The applicant and her partner receive Income Support;
•
The applicant receives Income-based Job Seeker’s Allowance;
•
The applicant receives Working Families’ Tax Credit;
•
The applicant or her partner receive Income Support, or Income-based
Job Seeker’s Allowance, Working Families’ Tax Credit,
or Disabled Person’s Tax Credit and the applicant receives
‘Legal Help’ and are involved in a civil case; or
•
They are involved in a family case and receive ‘Legal Help’.
There is
more information about this in the Court Service leaflet, EX160A,
Applicants who instruct a solicitor should bear in mind they must
pay both the court fees and the solicitor’s legal costs. Such
applicants may qualify for assistance under Community Legal Services
Funding (previously known as Legal Aid). To qualify for this they
must pass the statutory means test and must show reasonable grounds
to pursue the case.
Is
there funding help to pursue a case?
Both
parties are entitled to apply for public funding. All cases are
judged on their individual circumstances and measured against the
criteria set out in the Legal Services Commission Funding Code.
The Funding Code – Decision-Making Guidance states that “Legal
Representation will, rather than may, be refused where the prospect
of success of obtaining the order sought is poor or the cost benefit
Criterion is not met.” The Criterion for cost benefit is set
out in the Funding Code at section 11.10.03. This states that “Legal
Representation will be refused unless the likely benefits to be
gained from the proceedings for the client justify the likely costs,
having regard to the prospects of obtaining the order sought and
all other circumstances.”
Defendants
(perpetrators/respondents) are less likely to get public funding
under these criteria although it would not be impossible.
Applying
for funds to pursue a case might take time because each case is
treated on its own merits. In the case of an urgent domestic violence
injunction proceeding, a solicitor who is contracted with the Commission
can use devolved powers to grant an emergency certificate of Legal
Representation.
We believe
that people receiving Income Support or Income-based JobSeeker’s
Allowance automatically qualify financially for funding to carry
out a particular application in court. Otherwise, people may receive
non-contributory help if they have a gross monthly income of less
than £2,250 (a higher gross income limit applies if the applicant
has more than four dependent children), a monthly disposable income
below £263 and disposable capital of £3,000 or less.
If their monthly disposable income is between £263 and £695,
or disposable capital is between £3,000 and £8,000,
they will be offered funding on the basis that they agree to pay
contributions towards their legal costs. NB:
These figures will be further revised in line with the annual up-rating
of State Benefits (around April each year).
Even where
there is no contribution required from capital and/or income the
“statutory charge” may apply so that public funding
operates as a loan.
In such
cases the costs of the funded client are required to be paid out
of any property or money recovered or preserved. This can be so
where the client is involved in injunction proceedings and ancillary
relief proceedings.
In domestic
violence cases, the Funding Code requires the applicant to state
clearly what action has already been taken by the Police and what
other protection, if any, is already in place, or if a former application
has failed.
Public Funding
is generally not granted where bail conditions are in effect unless
these are likely to be lifted shortly following the determination
of a criminal prosecution. It is also required that the perpetrator
is sent a letter advising him that proceedings are being taken against
him, unless in the circumstances of the particular case it would
not be appropriate to do so.
There are
exceptions to this requirement, for example where it would not be
appropriate to give notice to the perpetrator because of the fear
of further violence.
It is important
to realise that the Commission considers cases on their individual
merits. Practitioners should always consider applying for funding
and should provide as much information as possible to the Commission
about the circumstances of the case.
What
are on-notice applications?
On-notice applications
are where all parties are sent notices to appear at a court hearing.
Once the application has been filed with the court or FPC:
•
It is given a case number and listed for hearing before either
a District or Circuit Judge, or a bench of magistrates. A date
could be set any time from a week to four weeks later, depending
on court business;
•
An on-notice application must be given to the respondent in person,
either by the applicant or her agent, not less than two days before
the date of the hearing (solicitors usually employ process servers
to do this)
•
The respondent will be served with the FL401
application, statement in support and form FL402 – notice
of hearing date; and
•
When the respondent has received the relevant papers, the applicant
must file a statement of service with the court (form
FL415 is available from the court or FPC).
What
are without notice applications?
These
used to be called ‘Ex-parte’ applications. They are
heard without notifying the respondent (therefore in his absence).
The procedure for applying for a without notice application is virtually
the same as for on-notice applications. The only difference is that
when the applicant comes to court to issue the application, they
go before the judge/magistrate the same day. In there sworn statement,
they must also include the reasons why the court should deal with
the application without notifying the respondent first. Section
45 of the FLA 1996 contains the statutory provisions on without
notice applications and the guidelines that courts should follow
when deciding whether to hear an application without notice. The
court must consider whether, on the balance of probability, there
is a risk of harm to the applicant (or any children) if an order
is not made immediately. If a non-molestation and/or occupation
order is made without notice, the court has to give a date for a
full hearing so that the respondent has an opportunity to attend
court personally.
Without
notice applications are usually granted, but if one is refused by
the court (and this does happen occasionally), the court ensures
that a hearing takes place quickly, usually within a week. Non-molestation
orders are more likely to be given without notice than occupation
orders.
How
to apply for non-molestation orders
An applicant should:
•
Complete form FL401
(copies are available at the court);
•
State there relationship with the respondent (by ticking the relevant
box);
•
Indicate briefly, in the space provided, what remedy they seek;
• Complete form C8 if they wish to omit there address from
the FL401 form
–
no permission from the court is needed for this; and
•
File a sworn statement in support of there application (this should
outline the main facts upon which they rely, including details
of any criminal activity and intervention by the police).
With court
permission, the FL401 can be supported by oral evidence instead.
In cases of extreme urgency the court may be prepared to accept
the application without a statement in support, but it is usual
practice for the court to ask the applicant to ensure they file
it at a later date.
How
are occupation orders different?
Occupation
orders are more complicated than non-molestation orders for various
reasons, but mainly because there are five different sections of
Part IV of the Family Law Act 1996 that relate to this issue (sections
33,35, 36, 37 and 38). Granting an order depends on the relationship
of the parties involved and whether the applicant has existing occupation
rights. It is important to bear in mind that applicants can only
seek an occupation order in relation to a property which either
is, has been, or is intended to be the home of the parties involved.
For example, an order cannot be made which concerns a property that
has been bought for investment purposes.
What
are the types of occupation orders?
The
court can make many different orders under the FLA 1996. Some are
listed here to give an idea of what the applicant could expect to
obtain.
An order
can:
•
Allow the applicant to occupy the home or part of the home;
•
Forbid the respondent to occupy the home or a specific part of
it;
•
Require the respondent to leave the home (by a certain time and
date);
•
Require the respondent not to return to the address stated;
•
Require the respondent not to evict the applicant from the home;
•
Require the party in occupation of the home to take reasonable
care of it;
•
Regulate the use of the furniture and chattels in the home; and
•
Require either the applicant or respondent to continue to pay
the mortgage or rent for the home.
Occupation
orders may also include penal notices and the court can also order
a Power of Arrest to be attached. However, the court cannot attach
a Power of Arrest to an order to take reasonable care of the home,
to pay the mortgage or rent, or one concerning the use of furniture
or chattels. As a result of an existing gap in the law, the court
cannot enforce payment of mortgage or rent. Applicants can obtain
occupation orders without notice following the same procedures as
outlined for non-molestation orders. If a respondent breaches an
occupation order, the applicant has the same enforcement procedures
available as with non-molestation orders.
Who
can apply for an occupation order?
There are three categories
of people who can make an application for an occupation order:
•
entitled persons;
•
non-entitled persons; and
•
persons with matrimonial home rights.
An ‘entitled’
person has some legal right to occupy a property as the freehold
owner, tenant or contractual licensee. A ‘non-entitled’
person has no such rights.
The type
of order for which a victim of domestic violence may apply depends
on whether they are entitled or non-entitled. If not entitled, the
type of application depends on whether they were married to the
respondent. An entitled applicant can apply for an order under Section
33 of the FLA, while a non-entitled person can apply under Sections
35, 36, 37 or 38. An entitled person who applies for an occupation
order must show that they were associated to the respondent, for
example, by marriage or cohabitation.
A list of
the definitions of association is at Annex A.
What
do hearings and orders involve?
Non-molestation and occupation
hearings for FL401 applications take place “in chambers”
private (in the judges’ room) at the county court. They may
also take place in FPCs, in which case the public is excluded from
the courtroom. Applicants may be required to give oral evidence
to the court. The length of a hearing varies, depending on the complexities
of the case and whether the respondent disputes the allegations.
After hearing the case the court can:
a) dismiss
the application (this rarely happens); or
b) make
a non-molestation and/or occupation order; or
c) accept
an ‘undertaking’ from the respondent in terms that
have been agreed between both the applicant and the respondent.
What
are ‘undertakings’?
An
undertaking is an option that allows the parties to settle their
dispute without a full hearing. It is a promise made to the court
to do, or not to do, certain things. It is not an admission of guilt.
The respondent can give an undertaking without having to admit to
the allegations made against him. An undertaking cannot, therefore,
be used in subsequent criminal proceedings as evidence of a criminal
charge or as proof that any violence has occurred. Nor does it provide
any factual evidence that the abuse took place. The court cannot
attach a Power of Arrest to an undertaking, but breaking an undertaking
is still contempt of court and is as enforceable as any other order
of the court. The undertaking (which is usually worded similarly
to a non-molestation order) must be signed by the person who gives
it. The court usually serves form N117/FL405
on both parties before they leave the hearing.
Can
the order be changed?
If
the respondent or applicant wish to vary (change the terms) or discharge
(cancel) an occupation order, non-molestation order, or both, they
must apply to the court on-notice. The court will arrange a further
hearing.
Are
there applications in other courts?
In
private law cases in the civil and/or family courts (cases between
individuals), the court is unlikely to know about any other actions
pending in the criminal court – unless they ask. For example,
a court hearing a contact application would not automatically be
aware of a pending criminal case in which bail restrictions apply
preventing the respondent (alleged perpetrator) from moving away
from the family home. Legal representatives are well advised to
ask their clients about other actions. They should also ensure that
the court is aware of all previous or current proceedings where
it is permissible under the rules of evidence to mention them. In
Part II of this guide, we return briefly to the issue of evidence
and sharing information between the jurisdictions. (See under the
section on the role of the Crown Prosecution Service.)
Can
you appeal?
An appeal may be lodged
when both parties have attended a hearing and one or both parties
are unhappy with the order given. The appeal must be lodged within
14 days of the date that the original order was made. If an appellant
is unable to lodge an appeal in this time, he or she may apply to
the same court that made the order for permission to take more time
to prepare an appeal. The appeals are heard in different courts
from the ones which made the original order:
•
Orders made in the magistrates’ court are appealed at the
High Court;
•
Orders made in the Family Proceedings Court are appealed in the
Divisional Court of the High Court;
•
Orders made by a District Judge of the county court are appealed
before a Circuit Judge in the county court;
•
Orders made by a District Judge of the High Court are appealed
before a High Court Judge in the same area; and
•
Orders made by a Circuit Judge are appealed at the Court of Appeal.
What
does Power of Arrest involve?
Power
of Arrest (POA) enables a police officer to arrest a respondent,
without a warrant, if he is reasonably suspected to be in breach
of provisions in an order. The main benefit to the applicant is
that they do not need to make a separate application to the court
for a warrant for arrest to be issued.
Once arrested,
the police are required to bring the respondent before the court
(that is, to the same level of court that made the original order)
within 24 hours(beginning at the time of his arrest). If the court
cannot deal with the matter within that time, it has the power to
remand the perpetrator in custody or on bail.
Courts can
attach a POA to an order (or to certain provisions in the order)
whether they are on-notice and without notice. In some circumstances,
the court must attach a POA to an order; for example, when it conclusively
finds that there has been violence, or a threat of violence, against
the applicant and that the applicant (and children) will not be
adequately protected without a POA.
POAs must
state a date when they will expire. Occasionally, they may expire
before the orders to which they are attached expire. For example,
this may be the case where the POA applies only to part of an order.
The POA form, FL406, must state clearly all the parts of the order
to which a POA is “attached”. The form must be delivered
to the officer in charge of any police station that covers the applicant’s
address. This must be accompanied by a statement from the applicant
(or her solicitors) that the respondent has been served or informed
of the terms of the order.
When
may a Warrant for Arrest be required?
Where
a POA has not been attached to the order, or it has only been attached
to some provisions in the order and the respondent is in breach
of a nonmolestation or occupation order, the applicant must apply
to the same civil court for a warrant for arrest. The application
is made without notice (as explained above) on form FL407
and must be supported by sworn evidence.
If the court
is satisfied that the respondent has not complied with the terms
of the order, a warrant for arrest is issued (form FL408). This
is sent by the court to the officer in charge at the police station
covering the applicant’s area.
What
is a Penal Notice?
The
following wording is used in both the undertaking form and the order
form:
“You
must obey the instructions contained in this order. If you do not,
you will be guilty of contempt of court, and you may be sent to
prison.”
This is
known as a penal notice. If the respondent fails to obey the order
or undertaking, the applicant can apply to the same court for a
committal hearing.
At these
hearings the respondent has to “show cause”, that is,
to explain why they should not be sent to prison. If they fail to
provide an adequate explanation for there actions, the judge can
sentence them for contempt of court.
What
does the court do when an order is breached?
When a respondent is arrested
and brought before the court, the court can:
•
Deal with the matter immediately and make the necessary order;
or
•
Adjourn the matter (the case must be brought back to court within
14 days of the arrest) and release the respondent; and
•
Give the parties not less than 2 days’ notice of the adjourned
hearing date.
At the committal
hearing the court decides whether or not the order has been breached
and, if the finding is that it has, decide what punishment to give.
The magistrates’ court can currently hand down a custodial
sentence of up to two months and the county court up to two years.
Most committals are for weeks or months rather than years. In many
cases courts make a suspended committal order which means the respondent
is not sent to prison provided they comply with the terms of the
order.
What
are the types of remand?
•
Remand in custody: The respondent is held in custody, to be brought
back before the court at the end of the committal (no longer than
8 clear days from this decision). If the remand period is no longer
than 3 clear days, the respondent may be held in the police station.
•
Remand on bail: The respondent may be remanded “on there
recognisance” which means they are not kept in custody but
must follow any conditions set by the court. These may include
the payment of money as a bond to ensure the respondent returns
to the hearing; or it may require someone vouching a bond of money
on the respondent’s behalf. This remand period cannot exceed
8 clear days unless both parties agree to a longer period. However,
an adjourned hearing cannot be more than 14 days after the respondent’s
arrest.
•
Further remand: If the respondent is unable to appear before the
court because of illness or another difficulty, the remand period
can be extended to allow for this.
The
Protection from Harassment Act 1997
The
Protection from Harassment Act 1997 (PHA 1997) contains both criminal
and civil remedies for domestic violence. We explain the criminal
sanctions in Part II of this guide.
The remedies
in this Act overlap with those in the Family Law Act 1996. The PHA
1997 was originally designed to address the problem of “stalking”
but it has also been used by people who cannot apply for an order
under the FLA 1996 because they do not meet the necessary requirement
for “association” through family relationships and/or
cohabitation.
The PHA
1997 provides civil remedies for restraining respondents and for
seeking damages for harassment offences. They include injunctions
and claims for damages. This Act contains no provision for the court
to make occupation orders and is limited to non-molestation orders.
Who
can apply?
Anyone
can apply for an injunction or damages against anyone else under
this Act. Under section 3 of the Act, proceedings can be based on
“an actual or apprehended breach of section 1”. This
contrasts with criminal proceedings under the Act which require
proof of a “course of conduct”, meaning that the defendant
has harassed the claimant on at least two previous occasions.
Which
courts are involved?
Applications
under section 3 of the Act can be made to the High Court or the
county court. Magistrates’ courts cannot deal with these cases.
How
do applicants apply?
If
the police decide to take criminal proceedings under sections 2
or 4 of the Act, it would not be necessary to pursue civil proceedings
at all. If an applicant decides to pursue civil proceedings under
section 3, they can either act on there own behalf or appoint a
solicitor. Involving a solicitor is more expensive, unless applicants
can get public funding. An applicant acting in person must be prepared
to complete all the relevant forms and plead there case before the
court if the case comes to trial.
In pursuing
a claim or injunction, applicants have various options. They may:
1) issue
a claim for a specified amount (damages for a fixed sum); or
2) issue
a claim for an unspecified amount (damages for an unspecified
sum of money); or
3) issue
an injunction application either with or without a money claim.
Whatever
their choice, applicants need to fill form N1 (which can be obtained
by the court). The fee payable depends on the remedy sought, as
does the procedure through the court. However, if applicants pursue
option 3 above, a hearing will be set before a District or Circuit
Judge. Claimants choosing option 1 above may not be required to
appear before the judge. If a defendant does not respond to the
claim and fails to file a defence, a claimant can ask the court
to enter judgement in default. In these cases, attendance at court
is not necessary. In an emergency, claimants can apply to the court
for an interim, or temporary, injunction (using form
N244) before an application for full proceedings is issued.
What
enforcement is there under PHA 1997?
Breach
of an order under this Act is a criminal offence. There is no provision
under the Act for attaching a Power of Arrest as in FLA 1996. But
when the court grants an injunction in order to restrain a defendant,
and a claimant states that the defendant has breached this order,
they may apply for a warrant of arrest (through the court where
the order was made). A warrant can only be issued if the application
is substantiated on oath and the judge has reasonable grounds for
believing that the defendant has not complied with the order, or
part of the order. A warrant would then be served by the court on
the officer in charge of the local police station covering the applicant’s
area. Alternatively, a claimant can make a ‘committal application’
– an application to commit a defendant to custody or prison.
The application, once issued by court staff, will be listed for
a hearing. The defendant must then “show cause” why
they should not be committed to prison for disobeying the order.
Housing
Act 1996
This Act
is an indirect means of protecting victims who experience domestic
violence because it relies on a third party – their landlord
– applying for a possession order. Only a landlord –
or more specifically, a local authority or social landlord –
can take action under this Act if it is brought to their attention,
or it is alleged, that a tenant is being violent towards another
tenant. This civil remedy also depends on the tenant who is experiencing
domestic violence leaving the property with no intention of returning.
It is, therefore, simply a way that the landlord can regain a property
by taking action against an abuser who remains in occupation. It
does not enable the victim of violence to stay in the property.
Nor does it provide any protection – in the form of an injunction
– in another location.
Children
Act 1989
An amendment
to the Children Act 1989 permits the court to attach a requirement,
with Power of Arrest if necessary, to remove a suspected child abuser
from the home. The court will only make these orders, under section
8 of the Act, when the request for exclusion is part of an application
for an Emergency Protections Order (EPO) or an Interim Care Order
(ICO). Previously, if the court made an EPO or an ICO, it was the
child who was removed from the home and not the suspected abuser.
The court will only order the exclusion of a suspected abuser if
strict criteria are met. For example, the court may require a statement
from the Local Authority to the effect that there is reasonable
cause to believe that the child is likely to suffer significant
harm if the suspected abuser is not removed from the home. Local
authorities usually make these types of applications to the family
proceedings court. If they seek an exclusion order, they have to
file a separate statement of evidence supporting the application.
The
Adoption and Children Act 2002
The Adoption
and Children Act was passed in November 2002. This Act now makes
clear that when a court is considering applications under section
8 of the Children Act 1989 and it is also considering whether a
child has suffered, or is likely to suffer harm, it must consider
harm that a child may suffer not just from domestic violence, but
from witnessing it. This amendment provides guidance for the courts
that add to existing guidelines – for courts and professionals
involved – on contact and domestic violence.
Part II
explains remedies available through the criminal courts, including
magistrates’ courts and crown courts.
PART
II: CRIMINAL SANCTIONS
The
Legislation
Sections
of the following Acts apply to domestic violence cases:
•
The
Police and Criminal Evidence Act 1984 (PACE);
•
The
Criminal Justice Act 1998;
•
The
Criminal Justice Act 1988;
•
The
Offences Against the Person Act 1861;
•
The
Sexual Offences Act 1956;
•
The
Public Order Act 1986;
•
The
Criminal Damage Act 1971;
•
The
Criminal Justice and Public Order Act 1994;
•
The
Youth Justice and Criminal Evidence Act; and
•
The
Protection from Harassment Act 1997 (PHA).
There is
no specific offence of ‘domestic violence’ under criminal
law. The charge, therefore, reflects the particular circumstances
of the abuse or violence. This means that there are many offences
that may apply to violence in a domestic context. These are a few
examples:
•
A person accused of choking, strangling or suffocating can be
charged with common assault or actual/grievous bodily harm, or
the specific offence of attempting to choke, strangle or suffocate;
•
A person accused of locking another person in a room or house
or preventing them from leaving, can be charged with false imprisonment
or harassment;
•
A person accused of violence resulting in death can be charged
with murder or manslaughter;
•
A person accused of damaging or destroying property can be charged
with criminal damage; and
•
A person accused of enforced sexual activity can be charged with
rape, indecent assault or harassment.
Magistrates’
courts deal with all domestic violence cases initially, since they
tend start as criminal offences. Depending on the severity of the
offence, cases may then be sent to the crown court. For example,
serious offences such as rape are always referred from magistrates’
courts to the crown court, whereas magistrates’ courts usually
deal with all but high value cases of criminal damage.
Survivors
of domestic violence cannot insist that the Crown Prosecution Service
(CPS) pursues a criminal prosecution. If the CPS decides not to
proceed with a case, for reasons outlined below, then the survivor
may consider pursuing a civil rather than criminal remedy. However,
the CPS has a policy to prosecute in all cases wherever possible.
What
is the police response to domestic violence?
Many
police authorities have Domestic Violence Units, or Domestic Violence
Liaison Officers attached to local police stations. Designated officers
are there to offer support to survivors of domestic violence. All
forces have Community Safety Units attached to local police stations
which can also provide information and advice to survivors. The
units deal with various community problems, including racial abuse,
neighbour nuisance and other issues.
When the
police are called to a scene of domestic violence they will typically:
•
Carry out an initial investigation and identify witnesses.
•
Arrest the offender if they are still there and they have grounds
to do this (they do not need a warrant to arrest someone they
suspect has committed or is about to commit a violent offence
or breach of the peace; nor do they need to have witnessed an
assault themselves).
•
Try to obtain a statement from the victim at the time, away from
the suspect, even if the statement is brief and basic. This will
help them to interview the suspect at the police station immediately
and then provides grounds to charge them, if appropriate, and
to take them to the magistrates’ court. The police can usually
keep a suspect in custody at the police station for no more than
24 hours, and they can impose only limited conditions if they
release them on police bail (see below).
•
Sometimes, ask the survivor to see the Forensic Medical Examiner
(FME). If they agree, the police may escort them to the police
station for an examination. In some cases, the FME will be called
by the police to attend the victim at the scene. If they are reluctant
to see an FME they will be urged to visit either there GP or local
hospital as quickly as possible. This not only ensures a proper
medical assessment for treatment but also obtains medical evidence
that can be used as evidence for the court case.
•
Advise the survivor, as required by the force’s own domestic
violence strategies, of other options available to them, for example
obtaining an injunction under civil proceedings. The police would
also provide them with contact addresses for support organisations.
The victim’s consent is required before the police can pass
any information to Victim Support.
The police
are responsible for investigating the matter and deciding whether
to charge the suspect. Sometimes they will seek advice from the
CPS about making a charge on the strength of the evidence and prospect
of conviction.
The defendant
must be formally charged within 24 hours of arrest, unless an extension
has been granted. Once the police have charged the suspect, the
CPS has to decide whether to continue with the prosecution. We deal
with the CPS role in more detail below.
What
does police bail involve?
The
police decide whether to bail the defendant, which means releasing
them either before charge, while they make further enquiries, or
after the charge, pending a court hearing. Defendants on bail are
listed to appear in court on the first available date, usually within
two or three days of bail conditions being imposed. The police may
decide to keep the defendant in custody to appear before the magistrates’
court the next day.
At the hearing
the court will decide whether the defendant should be bailed or
kept in custody until the full hearing. There is a presumption in
favour of bail. If the court is asked to remand the defendant in
custody, the prosecution must show that bail conditions would not
be enough to prevent the defendant from committing further offences
or interfering with witnesses, or to ensure that they will attend
the full hearing.
There are
various conditions that courts can impose on a defendant:
•
They must not contact, either directly or indirectly, a named
person; and/or
•
They must not go to a named place; and/or
•
They must reside at a named place; and/or
•
They must report to a named police station on a given day or days
at a given time.
Although
similar, these conditions should not be confused with civil nonmolestation
and occupation orders. When the court imposes bail, it uses a standard
form to record the decision and any conditions. If a defendant breaches
any of his bail conditions they can be arrested and the court has
the power to remand them in custody. Once the criminal case has
been concluded, bail conditions cease to have effect. The defendant
is therefore no longer restricted from contacting the survivor/witnesses
or from visiting or entering the family home. Further protection
will only be given if a restraining order has been granted in criminal
proceedings under the PHA 1997 or if a civil injunction order was
made either under the PHA 1997 or the FLA 1996.
What
is the role of the Crown Prosecution Service (CPS)?
There
are 42 CPS regions. In each there is a national domestic violence
co-ordinator with extensive experience in prosecuting domestic violence
cases and other cases. The areas are similar to the police commission
areas although the police have an extra City of London area.
After the
police have charged a defendant they refer the file to the CPS who
decides whether to proceed with the case. The decision to prosecute
is only taken by a prosecutor experienced in dealing with domestic
violence cases and is based on two tests set out in the Code for
Crown Prosecutors:
1) evidential
test – there must be sufficient evidence to provide a reasonable
prospect of conviction;
2) public
interest test – if the case passes the evidential test (and
only if it does) the CPS must go on to consider if a prosecution
is in the public interest.
There are
many factors to be taken into account under this test, including
the consequences for the survivor of the decision whether or not
to prosecute, and the views of the survivor.
If the survivor
decides to withdraw support for the prosecution, or does not wish
to give evidence, the case is not necessarily dropped. For example,
the CPS may be able to continue on the strength of other evidence
gathered at the scene by the police. Alternatively, a witness may
be compelled to attend court (although in practice the courts rarely
use this power). In some domestic violence cases the violence is
so serious, or the previous history shows such a real and continuing
danger to the survivor or the children or other people, that the
public interest in proceeding with the prosecution outweighs the
survivor’s wishes. As a rule, the CPS prosecutes all cases
where there is enough evidence and there are no other factors preventing
them from doing so.
If the survivor
informs the police that they wish to withdraw the action, the CPS
asks the police to take a written statement explaining there reasons,
confirming whether there original statement was true, and asking
if they have been pressured into taking this decision. The police
are asked their opinion about their response. If it is suspected
that the victim may have been put under undue pressure to withdraw
the case, the CPS may ask the police to investigate the matter further.
The CPS
recognises that the use of previous civil proceedings as evidence
in criminal proceedings is problematic, not least because family
matters in the civil courts are generally held in chambers. As such,
any evidence given privately to the judge should not be disclosed.
But if the CPS learns of any breaches of civil injunctions or occupation
orders, they will usually consider this relevant in providing extra
weight in the prosecution of criminal cases.
There are
details of how the CPS prosecutes domestic violence cases in its
revised policy, published in November 2001.
What
about court attendance and waiting times?
As
mentioned above, the majority of domestic violence criminal cases
are dealt with by the magistrates’ courts; a small proportion
is referred to the Crown Court, as explained below. The waiting
time for trials in both types of court can vary from a couple of
weeks to a several months. The waiting times depend on the location
and the workload of the court.
A case goes
to the Crown Court for a number of reasons including:
•
It is an “either-way” (see glossary) offence that
is not considered suitable for summary trial;
•
It is indictable only (see glossary);
•
The defendant wishes the transfer; and
•
The magistrates do not consider their powers of sentencing to
be sufficient.
Whatever
the stage of the criminal proceedings, the police are duty bound
to inform the survivor of any developments, especially of decisions
regarding bail. The police will inform the victim about Victim Support,
and the Witness Service available in every criminal court. The Witness
Service provides support and information for witnesses, victims,
their friends and family before, during and after a hearing. It
can arrange pre-trial visits to the court, if requested. The full
service to witnesses is set out in Victim Support’s leaflet,
Going to Court, which the police should give to witnesses. The police
can also put victims in touch with other local support organisations.
How
is a case listed?
The
police’s Criminal Justice Unit asks all parties for dates
to avoid before a case is listed for trial – also for telephone
numbers and addresses where parties can be reached at short notice.
Cases are listed for specific dates in the magistrates’ courts,
allowing a reasonable amount of time between the initial notification
a hearing and the date for which it has been arranged.
In the Crown
Courts, cases are either listed for specific dates or put in an
early-warned list that covers a period of about two weeks. In the
latter instances, the parties may be warned of the hearing the evening
before the trial date.
If either
of the parties cannot be contacted, the case is adjourned to a later
date. Witnesses are not required to attend if the defendant pleads
guilty.
What
is the role of witnesses?
Due
to the nature of domestic violence, the victim is often the only
witness to the offence and is, therefore, the key witness for the
court case. This can be avoided only if the defendant pleads guilty
or if there is very strong supporting evidence from other sources,
such as neighbours, police, or medical staff, which can be put before
the court.
Under Section
23 of the Criminal Justice Act 1988, a witness can give evidence
by a written sworn statement rather than in person. There are very
limited circumstances in which such applications can be made or
granted.
The court
must first be satisfied of a number of factors; for example, if
the witness is ill, in fear, or is prevented from giving evidence.
Once so satisfied, the court must also consider whether, in the
interests of justice, the statement is usable as evidence in place
of the witness appearing in person.
Courts tend
to be reluctant to allow these applications because the defendant’s
legal team is then denied the opportunity to cross-examine the witness
– particularly if the witness is the only witness to the offence.
From July
2002, new measures were introduced, following legislation in the
Youth Justice & Criminal Evidence Act 1999, which can be applied
to all ‘victims’. These require the police to identify
vulnerable or intimidated witnesses at an early stage. This allows
the CPS to consider the situation with the victim, and the magistrates’
court or crown court to decide on any special measures to assist
the victim when giving evidence. Special measures may include: separate
waiting rooms and facilities for victims and witnesses; giving evidence
from behind a screen, or via a TV/video link; or clearing the public
gallery. However, it should be remembered that special measures
apply in each case, according to the provisions set out in sections
16 and 17 of the Act. A table summarising those provisions is at
Annex B. More information about special measures is available on
the Home Office website.
What
does a conviction involve?
For
the defendant to be convicted of a criminal offence, the jury has
to be sure of the defendant’s guilt “beyond reasonable
doubt” rather than on the “balance of probabilities”
as in civil matters. If the jury is not sure, it has no choice but
to acquit the defendant.
If the defendant
is found guilty of the charges against them, then the possible sentences
that can be imposed are quite varied in theory. Compared to civil
cases, criminal cases offer further options that aim to modify the
perpetrator’s future behaviour. Civil cases primarily provide
protection for the applicant in the immediate term.
In practice,
the court only uses a narrow selection of options. Relatively few
defendants are sent to prison and very few are fined. Magistrates
tend to give restraining orders (under the PHA 1997), binding over
orders (see glossary), conditional discharges (see glossary) or
community penalties.
Section
33 of the Powers of Criminal Courts (Sentencing Act) 2000, currently
defines a community penalty order as meaning any of the following:
•
A curfew order;
•
A probation order;
•
A community service order;
•
A combination order;
•
A drug treatment and testing order;
•
An attendance centre order;
•
A supervision order; or
•
An action plan order.
In some
locations, community penalties may involve initiatives such as the
Duluth Project, in which defendants undertake programmes designed
to address their behaviour while programme organisers keep in contact
with the survivor to verify the defendant’s self-assessed
improvement. In such programmes, the defendant is referred back
to the magistrates’ court if they fail to complete the programme.
However, not all locations have such programmes.
Protection
from Harassment Act 1997 (criminal)
The
main advantage of this Act is its availability to those who have
not lived with their abusive partner, nor had children with him.
The PHA 1997 is a significant remedy for victims who cannot seek
protection under the Family Law Act 1996 because they do not fall
within the strict criteria for applicants set out by that Act (see
Annex A and Part I of this Guide).
Criminal
proceedings under PHA 1997 can result in a conviction that may carry
a restraining order. The restraining order can prohibit the offender
from a wide range of conduct, but it cannot make any orders concerning
property rights.
In addition
to providing civil remedies (as detailed in Part I), the Act also
provides for two criminal offences: criminal harassment (under section
2); and fear of violence (under section 4). Criminal harassment
is classed as a summary offence and is tried in the magistrates’
court. Fear of violence can be tried as either a summary offence
or an indictable offence in the Crown Court.
•
Section 2: under this section a person must not pursue a course
of conduct which amounts to harassment of another and which he
knows, or ought to know, amounts to the harassment of another,
that is, if any “reasonable person” in possession
of the same information would regard the conduct as harassment.
A “course of conduct” must involve conduct on at least
two occasions
•
Section 4: under this section a person whose course of conduct
causes another to fear, on at least two occasions, that violence
will be used against them is guilty of an offence, if he knows,
or ought to know, that this will cause the other fear
The police
have the power to arrest and charge anyone whom they suspect of
committing either of the above offences, and the CPS can prosecute
if the case meets their criteria for deciding whether to proceed.
Annex
A: Who is an associated person?
Concerning
Occupation Orders (section 62(3) of the FLA 1996)
•
They are or have been married to each other.
•
They are cohabitants or former cohabitants.
•
They live or have lived in the same household, otherwise than
merely by reason of one of them being the other’s employee,
tenant, lodger or boarder.
•
They are relatives.
•
They have agreed to marry each other (whether or not that agreement
has been terminated).
•
In relation to any child they are both persons falling within
subsection (4) which provides that a person falls within its scope
if:
1) He
is a parent of the child; or
2) He
has or has had parental responsibility for the child.
They are
parties to the same family proceedings (other than proceedings
under Part IV of the FLA 1996).
Concerning
Non-Molestation Orders (FLA 1996)
If the respondent falls
within any of the categories below an application can be made:
a) In
relation to the applicant:
•
Spouse
•
Former spouse
•
Cohabitant
•
Former cohabitant
b) In
relation to the applicant or to any class of person in a):
•
Father
•
Mother
•
Stepfather
•
Stepmother
•
Son
•
Daughter
•
Stepson
•
Stepdaughter
•
Grandmother
•
Grandfather
•
Grandson
•
Granddaughter
•
Brother
•
Sister
•
Half- or step-brother or sister
•
Uncle
•
Aunt
•
Niece
•
Nephew
c) In
relation to any of the persons in b):
•
Spouse
•
Former spouse
•
Cohabitant
•
Former cohabitant
d) •
Someone who lives, or has lived, in the same household.
e) •
Someone whom the applicant has agreed to marry; where agreement
terminated, only within 3 years of termination.
f) •
Where the applicant is the parent of a child or has parental responsibility
for a child, any other parent or person having parental responsibility.
g) •
Where a child has been adopted or freed for adoption:
i) a natural
parent, or the parent of such a natural parent, is associated
with;
ii) the
child or a parent of the child by virtue of an adoption order,
or a person who has applied for an adoption order, or any person
with whom the child has at any time been placed for adoption.
Anyone
in class i) may apply for an order against anyone in class ii).
h) •
the other party to any family proceedings.
NB:
The criteria used for determining who can apply for an order under
Part IV of the Family Law Act 1996 is relatively wide as can be
seen above. In general, if a survivor of domestic violence is related
to the perpetrator of the violence, this Act can be used as a remedy.
However, the Act cannot be used in situations where the survivor
has never lived with, been married to, or had children with the
perpetrator of the violence.
Annex
B: Special measures for vulnerable or intimidated witnesses
are provided in the 1999 Youth Justice & Criminal Evidence Act
(1999) (YJCE Act) available since 24 July 2002 and to the courts
in England and Wales in which they are available.
Annex
C: Glossary of terms
Bail
The release by the police or court of someone held in custody while
awaiting trial or appealing against a criminal conviction. Conditions
may be imposed on someone released on bail, for example payment
of a specified sum to the court if they fail to appear on the date
set by the court.
Binding
over (to keep the peace)
Used
by magistrates’ courts to mark behaviour that might lead to
a breach of the peace in the future – a method known as ‘preventative
justice’. This power can be used alone or in connection with
criminal offences, in addition to any penalty. ‘Bind overs’
can be made on application (or ‘complaint’) of a private
individual (such as a neighbour) or by the court itself. If the
person bound over fails to keep the peace for the time specified
by the court (usually 12 months) a magistrates’ court may
order forfeiture in whole or in part. This means the court would
implement the sentence set as a condition of the binding over.
Care
order
An
order under the Children Act 1989 which places a child under the
care of a Local Authority. An application can only be made by a
Local Authority, NSPCC or a person authorised by Secretary of State.
The court has the power to make a care order only when it is satisfied
that a child is suffering, or is likely to suffer, significant harm
either caused by the care, or lack of care, given by the child’s
parents.
Claim
form (civil)
A
formal, written statement setting out details of the remedy sought
by the claimant. The form may also contain particulars of the claim,
including background information such as dates and location of events
relevant to the case. If these are not included on the claim form
they can be forwarded to the court up to 14 days after the claim
is filed in court.
Commital
hearing (civil)
A
method of enforcing judgment by obtaining an order that a person
is committed to prison. It is most commonly sought when that person
has committed a contempt of court, for example by disobeying an
order of the court.
Conditional
discharge
An
offender may be conditionally discharged for up to three years.
The condition is that he or she does not commit another criminal
offence in that period. The discharge will then lapse. If a fresh
offence is committed during the period fixed by the court, the offender
can be sentenced afresh for the offence in respect of which the
conditional discharge was made. The offender will then face sentence
for two matters, the old and the new.
Conditional
discharges also rank as convictions.
Contempt
of court
Disobeying
a court judgment or process, for example breaching a nonmolestation
order is a contempt of court. The subject of the order (the respondent)
is warned that they risk imprisonment for contempt if they disobey
the order, by the fact that a penal notice is attached.
Crown
Prosecution Service
A
Government Department completely independent of the police but working
closely with them at all times. The CPS prosecutes people in England
and Wales who have been charged by the police with a criminal offence.
It also advises the police on possible prosecutions; reviews prosecutions
started by the police to ensure the right defendants are prosecuted
on the right charges before the appropriate court; prepares cases
for court; prosecutes cases at magistrates’ courts; and instructs
counsel to prosecute cases in the Crown Court and higher courts.
In some cases, CPS lawyers appear in the Crown Court and other higher
courts.
“Either
way”
Can refer to a case that
is “triable either way” or an “either way offence”.
This means a case can be tried either in the magistrates’
court or the crown court. The choice depends on the outcome of a
procedure known as mode of trial. Common examples of the kind of
offence that might go “either way” and that might be
related to domestic violence are:
•
Theft.
•
Deception.
•
Criminal damage where the value is more than £5,000.
•
Assault occasioning actual bodily harm.
•
Possession or supply of certain prescribed drugs.
Emergency
protection order
An
order made under the Children Act 1989 that gives a Local Authority
or NSPCC the right to remove a child to suitable accommodation for
a maximum of 8 days if there is reasonable cause to believe a child
is suffering, or likely to suffer significant harm unless the order
is made.
Ex-parte
– see Without notice
Indictable
offence
An
offence that may be tried on indictment, which means by jury in
the Crown Court. Most serious offences (murder, rape) are indictable.
They will start in the magistrates’ court and once the magistrates
have deemed that the offence is indictable the case will be referred
to the Crown Court.
Injunction
A
remedy in the form of a court order addressed to a particular person
that either prohibits them from doing, or continuing to do, a certain
act, or orders them to carry out a certain act.
Liquidated/unliquidated
claim
A
liquidated claim is a claim for damages for a specified amount of
money, for example £1,000. An unliquidated claim for damages
is for an unspecified amount of money, for example not more than
£10,000. The judge hearing the case will fix the amount awarded.
Non-molestation
order
An
order under the Family Law Act 1996 restraining a person from attacking
or going near someone associated with the respondent, or from otherwise
doing what the court orders him not to do.
On-notice
application
Application
listed for hearing by the court for which all parties to the action
are notified of the date and time of the hearing.
Penal
notice
A
notice that can be attached to civil orders warning a party or parties
that if they do not obey the order, or certain provisions in the
order, they will be in contempt of court and may be sent to prison.
Penal notices are mandatory on non-molestation orders, but discretionary
in respect of other orders. If an applicant (victim) feels that
the respondent (perpetrator) is likely to ignore or break the penal
notice, the applicant has to apply to the court to have a power
of arrest attached in order for the respondent to be arrested and
committed to court.
Power
of arrest
A
power attached to a non-molestation or occupation order which enables
the police to arrest, without warrant, a person whom they have reasonable
cause to suspect of being in breach of the order to which the power
is attached, even though that person may not be committing a criminal
act. It is not mandatory to attach a power of arrest to a non-molestation
or occupation order. The benefit here being, where a power of arrest
is attached, the applicant does not have to go to court to ask for
the respondent to be arrested since the police can arrest him without
a warrant.
Process
server
An
authorised person, typically an ‘officer of the court’
responsible for delivering legal documents to people – usually
defendants or respondents.
Remand
Committing
an accused person to custody or releasing them on bail. If the suspect
is remanded in custody they will be sent to the local prison.
Summary
offence
An
offence that can only be tried summarily, which means before magistrates
and without a jury. Most relatively minor offences (for example
common assault and battery) are summary offences.
Surety
A
guarantor of payment or performance if another fails to pay or perform.
Sureties may be provided by a bonding company which “posts
a bond” for a guardian, an administrator or a building contractor.
Most surety agreements require that a person looking to the surety
(asking for payment) must first attempt to collect or obtain performance
from the responsible person or entity.
Without
notice (previously ‘ex-parte’)
An
application made by one party to start court proceedings in the
absence of the other party (often applied for under the FLA 1996
because of the urgency of the application to protect the applicant).
a
guide to civil remedies and criminal sanctions November 2004 pdf
