What is domestic violence?
We now refer to this as domestic abuse, rather than violence, since it can include non physical abuse too. Domestic abuse can involve a single incident or a pattern of conduct of abusive behaviour towards another, and where the people involved are aged 16 or over and are, or have been, personally connected to each other.
‘Abusive behaviour’ can involve but is not limited to:
- physical or sexual abuse;
- violent or threatening behaviour;
- controlling or coercive behaviour;
- economic abuse;
- psychological and emotional abuse.
How can the law help victims of domestic abuse?
An individual suffering from domestic abuse has both civil (through the civil courts) or criminal (through the police and criminal courts) remedies. Through the criminal courts, the perpetrator can be charged with a criminal offence, such as assault and which can ultimately result in a custodial sentence.
Through the civil courts a victim of domestic abuse can make an application to the court to grant one or both of the following injunctions:
- non-molestation order
- occupation order
Molestation has quite a broad meaning. The intention is for orders to protect someone from being harrassed, pestered, threatened and ultimately harmed. A court has to be satisfied that some form of molestation has occurred to warrant protection. In addition the Judge must be satisfied on the balance of probabilities that an order is necessary to control the behaviour of the other person. An adult can request protection for themselves and/or their children.
The court may grant a non-molestation order for a specific period or until a further order is granted.
Breaching a non-molestation order is a criminal offence which is punishable by up to 5 years’ imprisonment.
These are more complicated because the court is being asked to deal with the rights of people to occupy or be excluded from their home. The purpose of the law is to balance the right of people to occupy their own homes with the requirement to keep safe those people that may be being harmed behind closed doors. When a Judge is considering exclusion of a person from their home, it has to have regard to:
- The housing needs and housing resources available to each person and any relevant child.
- The financial resources of each person.
- The likely effect of any order, or of any decision not to exercise its powers on the health, safety or wellbeing of the people concerned and of any relevant child.
- The conduct of the people in relation to each other and generally.
In addition the court is required to balance the harm that might be caused by not making an order agaist the harm that would be caused by making one.
An occupation order may also be granted for a specific period or under a further order. In practice they tend to be granted for 6 months. When the court is considering making an occupation order they will also consider making a non-molestation order.
The court may attach a power of arrest to an occupation order where the perpetrator has used or threatened violence against the applying victim or child. Where the court has not attached a power of arrest, or the perpetrator’s breach is not covered by the power of arrest, or an undertaking is breached, the applying victim may apply for a warrant of arrest.
Breach of an occupation order is punishable by applying to the court for contempt of court and is not a criminal offence. Any breach is then punishable by a fine or imprisonment for up to 2 years.
Who can apply for domestic abuse injunctions?
The Family Law Act 1996, which is the statute within which the court operates its powers, uses a term “associated persons” to determine if they can make an application to the court for an injunction. The definition encompasses most family members and was extended by the Domestic Violence, Crime and Victims Act 2004 to include former spouses and cohabitants even after the relationship has ended. This was further looked at in the Domestic Abuse Act 2021. Those people that fall outside the definition of associated persons can have recourse to similar provisions to non-molestation under the Protection from Harrassment Act 1997.
Children under the age of 18 years can also apply for non-molestation and/or occupation orders in their own right. Children under 16 have to get permission from the court (known as leave) and which is only given if the court is satisfied that the child has sufficient understanding to make the application.
The court can grant a non-molestation order and/or occupation order ‘without notice’ to the perpetrator. When doing so, the court will consider:
- any risk of significant harm to the applying victim or child if the order is not made immediately;
- whether it is likely that the applying victim will be deterred or prevented from pursuing the application if the order is not made immediately; and
- whether there is reason to believe that the perpetrator is evading service + delay in effecting service will seriously prejudice the applying victim or child.
As an alternative to an injunction, the perpetrator may be able to provide an undertaking (a legally enforceable binding promise to the court) promising the same/similar terms to a court order. Breach of this is again punishable by an application back to court for contempt of court. However, the court will not accept an undertaking on an application for a non-molestation order where the Respondent has used or threatened violence or if a non-molestation order is necessary so that any breach can be punishable as a criminal offence.
Do you think people / victims worry about going down this route?
Individuals suffering from domestic abuse can often feel reluctant and anxious when applying for injunction orders as they are worried that it could aggravate their abuser and therefore put them in a further dangerous position. That it is why it is important for those working with victims of domestic abuse to encourage them to seek help and to protect themselves. In addition to getting help from a lawyer or the police, there are many domestic abuse support services available that can help protect you when bringing such applications; the contact information is noted below.
Does Domestic abuse increase during the World Cup/sporting tournaments?
Whilst it is impossible to prove that this is the case without further extensive research, according to one study published back in 2013 on the Football World Cup, rates of domestic violence increased when England are playing by 26% when they won, and 38% when they lost.
More recently in 2021, a study from the London School of Economics and Political Science found that the increase in domestic abuse following football games is driven by alcohol. The research cited a 5% decrease in incidents during the two-hour duration of the game, however, after the game, domestic abuse incidents started to increase and peaked at about 8.5% more incidents than average around ten hours after the game started. The study found the increase in domestic abuse was driven by male-on-female abuse by perpetrators who had drunk alcohol. The study ruled out the theory that the rise in domestic abuse following a football game was due to heightened emotions due to the match.
Therefore, it seems that sporting events themselves do not trigger domestic violence but instead the excessive alcohol consumption that usually follows those events does.
What is your advice to someone who is a victim, or at risk of being a victim, of domestic abuse at this time? How can they stay safe?
- If you are in immediate danger, call 999 and ask for the police. If you can’t speak and are calling on a mobile press 55 to have your call transferred to the police.
- Women can call The Freephone National Domestic Abuse Helpline, run by Refuge on 0808 2000 247 for free at any time, day or night. The staff will offer confidential, non-judgemental information and support.
- Men can call Men’s Advice Line on 0808 8010 327 (Monday to Friday 9am to 8pm), or visit the webchat at Men’s Advice Line (Wednesday to Friday 10am to 11am and 3pm to 4pm) for non-judgemental information and support.
- You can also contact a solicitor to discuss your options and get advice on how to protect yourself as safely as possible. You may be eligible for Legal Aid for initial advice and assistance. You can check if you are eligible here: https://www.gov.uk/check-legal-aid
If you, or someone you know, is suffering from any form of domestic abuse, please contact a member of the Family team at Whitehead Monckton for advice and assistance.