Help available under Civil law

Injunctions

An abused woman can apply for an injunction in the Magistrates’ Court or the County Court under Part IV of the Family Law Act 1996. These are court orders that order someone to do something, or not to do something. There are two main types of injunctions (also called protection orders). These are:

• A non-molestation order
• An occupation order

Who can apply

In order to apply for an order against someone else under Part IV of the Family Law Act 1996, the applicant (the person applying) must be ‘associated’ with the respondent (the person against whom the order is made). They are ‘associated persons’ if:

1. They are or have been married to each other.
2. They are cohabitants or former cohabitants (defined as opposite sex).
3. They live or have lived in the same household. This applies to lesbians and gay men living in the same household.
4. They are relatives.
5. They have agreed to marry each other (whether or not that agreement has been terminated).
6. They, in relation to any child, are the parents of the child or have had parental responsibility for the child.
7. They are parties to the same family proceedings (e.g. divorce, child contact).

If the applicant is a woman without children who has never lived with her abuser she is therefore excluded from applying for orders under Part IV of the Family Law Act (instead she can apply under the Protection from Harassment Act 1997).

There are also additional conditions on who can apply for occupation orders.

Non-molestation orders

A non-molestation order is a court order to prevent a woman’s partner from assaulting, pestering, molesting or threatening her or her children. It can also have very specific instructions in it to suit her particular case; for example, it could order her ex-partner to stop telephoning her or pestering her at work. She can apply for a non-molestation order against someone if she is associated with them (see above). A non-molestation order is granted for six months or for an indefinite period.

Occupation orders

These are orders that regulate who can live in the family home. If she does not feel safe to continue living with her partner, or she has left home because of violence but wishes to return and exclude her abuser, she may want to apply for an occupation order. She can also apply to restrict the respondent from the home and/or surrounding area.

She must be an associated person to apply for an occupation order but not all associated persons are eligible unless they meet further criteria. Applications are made under different sections of the Act, depending whether she is an ‘entitled’ or ‘non-entitled’ applicant.

To be entitled, she must already have rights to occupy the property as a tenant or owner, or have ‘matrimonial home rights’ as the spouse of someone who is entitled. If she is entitled, then she can apply for an order as long as they are both associated persons (see above), and the order can last for six months or indefinitely.

If she is ‘non-entitled’, that is, has no existing legal right to occupy the home as joint tenant or co-owner, then she can only apply for an occupation order if she is a former spouse, cohabitant or ex-cohabitant (defined as having lived as man and wife). This means, for example, that if she is a lesbian she cannot get an occupation order for her former home unless she is already a tenant or owner. These orders can be granted for a period of six months, but can be extended for longer depending on the status of the applicant. Non-entitled cohabitants can only have occupation orders extended for up to one year.

Court decisions

The court has discretion when deciding whether to make an order, and has to look at all of her circumstances, as well as the circumstances of her partner and any children. Whatever the situation the court must look at both parties needs and housing resources; their financial resources; the likely effect of any order (or lack of order) on the health, safety or well-being of any of them; and their conduct in relation to each other.

If she is a non-entitled applicant, where the respondent (person against whom she is applying for the order) is legally entitled to live in the property but she is not, then the court also has to consider other factors.

If she is a former spouse, the court will look at how long it is since they lived together, the length of time since the marriage legally ended and the existence of any pending proceedings between them.

If she is a cohabitant or ex-cohabitant, the court also has to consider the nature of their relationship, the length of time during which they lived together as husband and wife, whether there are any children and how long it is since they lived together.

The court also has to apply one further test to see whether or not to grant the order, the ‘balance of harm test’. When looking at her needs, the needs of her children, and the needs of her abuser, the court has to decide who is likely to suffer the greatest harm if the order is not made. As the court can only consider the harm caused to her or her children by the conduct of the respondent, it is important that she provides the court with as much evidence as possible of all aspects of the harm caused by his abusive behaviour, including the fact that she has had to, or may have to, leave her home, and the impact it will have on her physical or mental well-being, as well as her child’s.

Giving evidence to the civil court

She will need to make a sworn statement to the court (called an affidavit) about the abuse she has experienced. She will need to be as precise as possible about all the ways she has been bullied or hurt, as well as describing the effects on both herself and her children. It will help if she has kept a record, or can show independent evidence, of any incidents in the past: from police, doctors, health visitors, social workers or other possible witnesses, such as neighbours, relatives or friends.

Going to court can often be a frightening experience for many women. The woman should be made aware of what happens in court and that, although she will be with her solicitor, other supporters are not allowed in. It should be explained to the woman that the hearing will take place in chambers, which means that only those people that are directly concerned with the case are present. The abuser may be in court and may try to intimidate her. The woman should be reassured that she is not obliged to sit or talk with him. Court officers can keep him away from her if she is worried about his presence.

Protection in an emergency

If a woman is in immediate danger, she can apply to the court the same day for an ‘ex-parte’ (emergency) order without her partner being there. She will then have to go back to court, once he has been served with notice of the order, for a full hearing (an ‘inter-parties’ hearing).

If there are other family proceedings already in progress, or her partner makes an application at the same time (e.g. for child contact), the court may wish to hear the whole case together, but she can still be granted an emergency order whilst waiting for the whole case to be heard.

Undertakings

Sometimes the court will suggest that instead of an injunction, the man should make an undertaking (promise) to the court to ‘behave’. These takes less court time than arguing a case and have been frequently made instead of injunctions. But an undertaking cannot have a power of arrest attached (see below) and therefore is harder to enforce. An undertaking should not be used where violence has been used or threatened. The woman does not have to agree to accept one, if she does not want to.

Breach of injunctions

At a full hearing, where violence has been used or threatened, the court must attach a ‘power of arrest’ to an order. The injunction is then held on record at the police station, so that the police can then arrest immediately if the order is broken and take the man back before the court. The court can also attach a power of arrest in an emergency, even if the man has not been given notice to appear in court, if the woman is likely to be at risk of significant harm otherwise.

If there is no power of arrest and the order is broken, the woman will have to go back to her solicitor to apply to the court to issue a warrant for his arrest.

When the case is taken back to court, the court has a number of options, depending on the seriousness of the situation. They can fine him, impose a suspended sentence or commit him to prison (this rarely happens), as well as making the injunction stronger by, for example, adding a power of arrest or extending it.

If he keeps on harassing her, she will have to keep going back to court. She can also ask the police to help record evidence of this and take action under the Protection from Harassment Act 1997 (see above under criminal law.) If she is a woman without children who has never lived with her abuser, and, therefore, cannot use the Family Law Act 1996, this is her main option.

Court orders are only effective if, firstly, the woman feels able to report when they are broken and, secondly, breaches are followed up by swift action from the police and effective sanctions from the court. Although they might not necessarily prevent further violence, they do offer a possibility of the man being held responsible for his actions.

Getting legal representation

It is always advisable for women to consult a solicitor for advice. Rights for Women can be used for free legal advice, so that only representation in court has to be paid for. Also, Rights for Women have produced a DIY injunction pack. If a woman decides to consult a solicitor for advice or to take legal proceedings, it is important that she is a referred to a solicitor who is sympathetic and who has a great deal of understanding and interest in laws relevant to domestic violence. Some firms cater for women’s language needs or can provide female solicitors. A list of local solicitors is available from police stations, social services, the Citizens Advice Bureau and other public and voluntary organisations.

It would be useful when the woman goes to see a solicitor to have the following ready:

• Photographs of injuries.
• Medical reports
• Marriage certificate
• Photograph of partner
• Details of any previous legal action.
• Property and tenancy documents.

A short account of the abuse with dates, any medical treatment received, police or other agency involvement.

A woman should be able to trust and feel confident in her solicitor. If a woman feels uncomfortable with a solicitor because he/she does not carry out her instructions, is confused about the nature of advice given and/or believes the solicitor lacks interest in domestic violence, she has the right to change solicitors without explaining her actions. She can approach a new solicitor who will arrange to have her papers and Legal Aid information transferred from the previous one.

Legal Aid

Legal Aid is public money that is available to those who need help with legal costs. If the woman is on Income Support or has very low income and little savings, she can usually get help from Legal Aid to pay for a solicitor’s advice and for legal proceedings. Otherwise, she may have to pay a contribution or the full costs of the legal action.

The green form scheme is available to cover the cost of work, such as advice, correspondence, negotiations and drafting of documents. Some solicitors also offer a fixed term advice session for half an hour either for free or for very low cost. However these do not cover the cost of legal representation at court. Legal aid for this can take several weeks to arrange. In urgent cases, however, emergency legal aid can be applied for and may be granted within 24 hours.

Human Rights Act

INTRODUCTION

The Human Rights Act places a duty on public institutions to protect individuals from having their human rights violated. It will place a greater emphasis on justifying both action AND inaction. Case law from the European Court of Human Rights is limited (since most European countries have their own domestic human rights legislation) and is often inconclusive but it generally points to an obligation on public bodies to take action, in particulate the police.

ONLY public authorities can breach Human Rights law, not individuals. The new law will apply to core public authorities (e.g. local government, health and police) and those whose functions are of ‘a public nature’ (e.g. private security firms transporting prisoners).

Although many of the articles of human rights law apply in domestic violence situations, some are especially relevant:

• Article 2: The right to life

• Article 3: The right not to be subjected in inhuman or degrading treatment

• Article 5: The right to liberty and security

• Article 8: The right to respect for private and family life

PRINCIPLES OF HUMAN RIGHTS LAW

• Respect for legality and the rule of law

• Penalties for breaking the law should be generally uniform

• If human rights law is to be breached it must be because it is necessary (e.g. to prevent crime) and because a ‘pressing social need’ exists

• There must be proportionality (e.g. rights of the individual must be balanced against those of the community. This allows the human rights of an individual, such as an abusive man, to be over-ridden in the interests of the community.

• Not all rights are absolute; some are qualified by certain circumstances (e.g. right to family life can be curtailed for child abusers.


PEOPLE WHO CAN TAKE ACTION

• Those who are directly affected

• Family members of those directly affected

• Members of a group likely to be affected


RELEVANT CASE LAW

A. vs. UK (1999): This established a positive obligation under article 3 for the UK Government to have in place strengthened laws to protect children from being assaulted by a parent. The European Court of Human Rights (ECHR) ruled that UK legal defence allowed in law of ‘reasonable chastisement’ was incompatible with human rights.

Whiteside vs. UK (1997): The ECHR found that there was a positive obligation under article 8 for the State to protect. In this case, however, the ECHR ruled that UK law had not been exhausted (the woman concerned had not applied for an injunction).

Osman vs. UK (1998): The ECHR found a positive obligation under article 2 and 8, that the State had a duty to investigate crime especially if there was a ‘real and immediate danger to life’. In this case, a father had warned both the police and the school that a teacher was displaying an unhealthy interest in his son. The school did not suspend the teacher and the police did nothing. This case did not, however, establish exactly when a ‘real and immediate danger to life’ begins. What it did establish is that if there is an identifiable victim, and no action is taken, the police can be held accountable for negligence.

This means that the introduction of the Human Rights Act (HRA) will impact heavily on record keeping as any challenged will need to be justified. For example, in domestic violence situations, a written record will have to be made as to why an arrest was NOT made if a power of arrest existed.

Jane Doe vs. Toronto (1999): ‘Jane Doe’ was the fifth victim of a serial rapist. Although the police knew the rapist was attacking in a specific area of the city, targeting women who lived alone in second floor flats, they did not issue a warning based on an anticipation of ‘ an hysterical response’. The court found the police guilty of contravening articles 2 and 14 (the right to enjoy ones rights free of discrimination); they had failed to protect potential victims and their decision to do so had been based on stereotypical assumptions about women.

One practical affect of this case, is that it effectively places upon the police (and other parts of the criminal justice system) a duty to inform women when their abuser is released from custody or on bail.


IS THERE A DUTY TO PROSECUTE?

• The interests of the victim (not just wishes) must be taken into account. It could be argued that a woman’s wish not to prosecute can be over-ridden by the fact that this is not in her interests.

• A decision not to charge or prosecute when a victim’s rights have been contravened must be justified. This justification cannot include resource considerations.

• More consultation with victims than currently exists may be required.


ARTICLE 8 : THE RIGHT TO PRIVACY

This is not an absolute right; it can be over-ridden to, for example, prevent crime. However, contravention must be necessary and proportionate. This means information sharing protocols developed under the Crime and Disorder Act may have to be reviewed and also that this places an obligation on public bodies to inform women who will be given any personal information.

It is a difficult balance between protection and empowerment; more case law will be needed to establish clear boundaries.

As the new law is implemented, this paper will be up-dated.