The current law on domestic violence and abuse fails to adequately support the

interests of the victims it is supposed to protect’. Discuss.

There is no one definition for domestic violence. In 2013, the Home Office published a
definition that may be used for government and public sector. According to this definition,
domestic violence is ‘Any incident or patten of incidents of controlling, coercive or
threatening behaviour, violence or abuse between those ages 16 or over who are or have
been intimate partners or family members regardless of gender or sexuality’. From this
definition one may note a broader approach in line with modern society, inclusive of new
family dynamics.

This definition further states that abuse can include psychological, physical, sexual,
financial and emotional abuse. Coercive behaviour is defined as an act or patter of acts of
assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or
frighten the victim. Controlling behaviour includes a range of acts meant to keep a person
as a subordinate or dependent through isolation from support, exploitation of resources
and capacities for personal gain and depriving a person of means needed for
independence, resistance and escape. This also includes regulating day to day behaviour
and habits. Domestic violence also includes forced marriages, as in Chief Constable v YK
(2010), and ‘honour based’ violent acts. Laws covering domestic violence include civil
remedies and protection orders as well as criminal prohibition.

In criminal law, there is no defined crime known as domestic violence, though in common
view it includes rape, assault, stalking and now coercive control as seen in Section 76 of
the Serious Crime Act of 2015. It is established that no spouse has the right to inflict
violence of any kind on the other. In certain cases, a spouse may be prosecuted for the
aforementioned criminal offences as in the case of R v R (Rape: Marital Exemption) 1991.

Though many behaviours are offences by law, criminal law has proven ineffective in
curbing domestic violence for two main reasons which are the complicated procedural
requirements which slow down the initiation of a criminal case and the reluctancy of the
police to file charges for domestic violence cases. The latter could be due to victims being
reluctant to go to court against their abuser due to fears for their safety or possibly their
children’s safety. It is also regarded as being within the boundaries of family life and
‘unsuitable for law enforcement’ (Module Guide). For married parties, divorce may be a
more viable long-term solution though abuse may continue even after. The Domestic
Abuse Bill 2019 aims to propose a statutory definition but this is an ongoing process.

The Family Law Act 1996 re-addressed three previous, overlapping statutes and provided
a comprehensive approach to remedies of domestic violence. Two forms of relief under
the FLA 1996 are considered for domestic violence.

The first is an Occupation order. The Act clarifies differences between parties with
common interest in dwellings, de factor relationships (s.33), former spouses with no right
to the dwelling(s.35) and spouses who have no entitlement to a family home (s.37). The
act also makes provisions for cohabitants in similar situations (s. 36 and 38). The party
who is granted the order will be granted the residence in dispute. The court will make the
order based on the circumstances, for example the abuser may be removed from the
residence or provide boundaries within the residence itself.

An example can be seen in the case of B v B(1999) , a S. 33 order, where the court of
Appeal concluded that the son was likely to suffer harm if the order was given so the order
was unsuccessful. In Re Y (A child) (occupation order) the occupation was made in favour
of the husband in light of his health/disability, no evidence showed that harm was
attributable to the wife as required by statute. The Balance of Harm test (S 33.7) will often
be applied and if passed, an order will be made accordingly. As seen, the occupation
orders cover a wide scope of situations. However, if the Balance of Harm test is not
satisfied, supplementary provisions as in S. 40 of the Act may come into play. Some of the
conditions court may impose may be as to the repair and maintenance of a home
(mortgage etc included), granting periodic payments from the occupying party to the other,
granting of possession or use of furniture and other such property and reasonable steps to
maintain security of home and inclusive property.

The other main provision under the FLA is Personal protection, or Non-Molestation orders
under S.42. An associated person is a concept introduced in this section and involves
present and former spouses, civil and former civil partners, present and former
cohabitants, either gender and employees, tenants or boarders who may have shared the
residence. It also includes relatives, engaged/formerly engaged couple and those who
have parental responsibilities towards a child. It was further explored in the cases of
Chechi v Bashier and G v F 2000. However, it must be noted that the Act does not define
molestation as McFarlane LJ notes in the case of Re T(A Child) (Non-Molestation Order).
A non-molestation order may be given for specific periods or until further order and may be
applied for by a child with leave of the court.

Relief may be further given through the Protection Against Harassment Act 1997 which
has provisions for offences such as stalking (S2A.3). If a situation falls outside the scope
of the FLA, the parties may be able to rely on injunctive relief or criminal proceedings
under the PHA 1997.

When occupation orders are made, court may attach an order for arrest if the respondent
appears to have threatened to or used violence against the other party or involved children
under S62.2. A victim of domestic violence may also be granted financial compensation if
sought from the Criminal Injuries Compensation board. A party who has been rendered
homeless due to domestic violence or is threatened with homelessness may also apply to
authorities for rehousing. The local authorities will consider the risk of violence if the party
returned home as in R v Broxbourne. The Supreme Court has considered the meaning of
Domestic violence in the Housing Act 1996, which included physical violence, threatening
or intimidating behaviour and other forms of abuse as well.

Protection has been further extended though provisions made in the Crime And Security
Act of 2010. It involves the issuing of a Domestic Violence Protection Notice which
requires the abuser to vacate the premises and not contact the victim. It must be heard in
a family court within 48 hours and may last for a period of 4 weeks.

The Human Rights Act 1998 may be argued as relevant to domestic abuse in several
ways as certain occupation orders may conflict with the rights in articles 1 and 6 which
allows for enjoyment of possessions and the public hearing requirement. Article 3,
prevention of inhumane treatment, may support occupation orders as it ensures the
protection and prevention of abuse to a citizen. In Opuz v Turkey, a case in the ECtHR, it
was held that a country is obliged to protect women from domestic violence under Articles
2, 6 and 8, providing yet another means of relief for domestic violence victims.

In conclusion, it can be seen that through provisions under Family Law and also other
statutory provisions including the Human Rights Act and criminal law, there is evidence to
show that the law supports the interests of the victims it is supposed to protect. A finite
and detailed statutory definition would greatly improve the situation, so if the Bill is passed,
the law will truly be in support of the victim’s interests.

(1275 words)