Family Solicitors

By Mary Lartey

Domestic violence – violence in the home – can take many forms. It includes not just physical assault, but psychological and emotional molestation or harassment, and may also involve pestering, nagging, making nuisance telephone calls and intimidation. Common instances include persistent pestering and intimidation through shouting, denigration and threats or argument. Domestic violence occurs across society regardless of age, gender, race, sexuality, wealth and geography.

Part IV of the Family Law Act 1996 provides civil remedies for protection against domestic violence and makes provision in respect of occupation of the family home. The Protection Harassment Act 1997 on the other hand, creates two criminal offences of harassment and gives the court power to grant injunction restraining a defendant from pursuing any course of conduct which amounts to harassment. The Domestic Violence, Crime and Victims Act 2004, amends the Part IV of the Family Law Act 1996 and Protection from Harassment Act 1997 to give greater protection to victims of domestic.

There are two essential orders available under the Family Law Act 1996. These are occupation orders under section 33 and non-molestation orders under section 42. Under the non-molestation order the victim of domestic violence can seek a court order that the abuser does not molest her and under occupation order, the victim can seek a court order that the respondent leave and stay away from the family home. These orders are primarily designed to deter the respondent from abusing the applicant in the future. If the respondent fails to comply with the non-molestation or occupation order, he could face imprisonment as stated under section 42A. A breach of a non-molestation order is now a criminal offence. This shows that the law is strict regarding the issue of domestic violence.

The Part IV of the Family Law Act 1996 creates two kinds of applicant. These are ‘entitled applicant’ and ‘non-entitled’ applicant. An ‘entitled’ applicant is a person who has a right to occupy a dwelling house: by virtue of a beneficial estate or interest or contact; or by virtue of any enactment giving him the right to remain in occupation; or who has ‘home rights’ under section 30 of the Act. On the other hand, a ‘non-entitled’ applicant is a person who has no right to occupy the home by virtue of a beneficial estate, interest, contract or enactment or by having ‘home rights’. It is stated that the courts’ power to make occupation orders are much greater for entitled applicants. This supports the view that the remedies under the Family Law Act 1996 are discriminatory.

Section 42 of the Act prohibits a person from molesting another person who is associated with the respondent and also prohibits the respondent from molesting a relevant child. This means that the applicant must be ‘associated’ with the respondent, and the child must be a ‘relevant child’. A ‘relevant child’ is defined under section 62 (2). According to academics, there was much debate over who should be able to apply for non-molestation injunctions under the Act. The Law Commission Report preceding this Act suggested that remedies should be limited to those who have an especial emotional tie. The Law Commission also suggested that people who had had a ‘sexual relationship with each other whether or not including sexual intercourse’ should be included in the definition of those who could apply for an injunction. Due to the difficulties of defining a ‘sexual relationship’, this category was abandoned. It was therefore decided that only associated persons could apply for a non-molestation order.

According to Judge John Platt, ‘it is certainly well known that many victims of domestic violence do not seek the protection of the court to which they are entitled.’ Perhaps, this is because the remedies available for people who need protection from domestic abuse are discriminatory and inadequate. Research has shown that domestic violent victims fear reporting the abuse. Furthermore, domestic violent victims find it difficult to report the abuse because they feel ashamed to tell anyone much less a law enforcement officer. Others have argued that there are no guarantees that reporting the abuse will make the victims life any better.

Most victims of domestic violence require no remedy but for the violence to stop. Can the law really help them completely?