Protection from Domestic Abuse

Domestic violence refers to abuse within the home, often between partners but worryingly, also involving children too. The majority of victims of domestic violence are women, but it is important to recognise that men can be subjected to physical and emotional attacks as well. There are a number of ways in which people can be protected from the threat of domestic abuse and violence. Understanding the way in which the law manages threats and illegal behaviour can help to provide protection for victims and potential victims.

What is Domestic Abuse?

Domestic abuse encompasses a range of negative behaviours that are forced upon another person, primarily in a household setting. A recently revised definition of domestic violence and abuse was released by the British government and clarifies the terms as meaning:

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:

• psychological
• physical
• sexual
• financial
• emotional

Domestic abuse can be suffered by men, women or children and can be an individual occurrence or an ongoing sequence of attacks.

Domestic Violence Disclosure Scheme

The domestic violence disclosure scheme was introduced in March 2014 and allows individuals to gain information regarding a new or existing partner and their past behaviour. This helps individuals to be sure that there is a minimised risk of domestic violence or abuse based on a person's previous conduct.

Right to ask

Under the new scheme, an individual can request information from the police to find out whether their partner has a violent past. The police can use their discretion to release information to an individual upon request if they believe that there is a threat of domestic violence or abuse. The disclosure can be made if it is legal, proportionate and necessary to do so.

Right to know

The ‘right to know' makes it acceptable for an agency to apply for a disclosure relating to the previous behaviour of an individual if they believe that another person or people are at risk of domestic violence. The police are authorised to release information if it is lawful, necessary and proportionate to do so.

How Can the Law Protect Victims of Domestic Abuse?

Domestic abuse offences are covered by Part 5 the Family Law Act 1996 which was revised by the Domestic Violence, Crime and Victims Act 2004. Most domestic abuse takes the form of some sort of attack against a person. This makes such behaviour a criminal offence which can be punishable by a fine, a prison sentence or both.

Victims of domestic violence can apply for an injunction, which is a court order that prevents further types of assault or behaviour. There are two types of order that can be applied for. They are:

Occupation Order

An occupation order determines who can live in the family home. This order can also restrict the abuser from entering the property and its surrounding areas. This sort of order is often issued when a victim of domestic abuse does not feel safe in living with their partner or if they believe that their partner might return to the home after leaving.

Non-molestation order

A non-molestation order is used to prevent a victim's partner or ex-partner from threatening them or their children. Such threats might take the form of intimidation, harassment or abuse. This type of order serves to enhance the wellbeing, security and health of the victim and their family.

Who Can Apply for an Order?

Part 5 of the Family Law Act details that for a person to apply for one of the above orders, they must be an associated person. The definition of an associated person is that the applicant or victim must be related to the person with whom the order refers to in one of the following ways:

• Marriage - either current or previous
• Civil Partnership - either current or former
• Cohabitants or former cohabitants
• Relatives
• You shared a formal agreement to marry each other previously
• You have a child together
• You have parental responsibility for a child of the partner
• You are involved in family proceedings together.

If a person is the victim of domestic violence or abuse but does not fall into one of the categories above, they can apply for a civil injunction under the Protection from Harassment Act 1997, to obtain security and protection against further such behaviour.

The injunction that is in place is normally in force for a specified period and can either be renewed or issued on the basis of "until further notice". The court will determine any necessary time periods.

What Happens if the Injunction is Breached?

The result of a breached injunction is either treated as a civil offence or a criminal offence, dependent upon the order that is in place.

A breach of an occupation order is a civil offence which means that the person who breaches the injunction is most likely to face charges in a civil court. A power of arrest can be attached to this type of order, which means that if it is breached, the individual can be arrested, and the case will then be treated as a criminal offence.

The changes that were brought about by the domestic violence disclosure scheme mean that a breach of a non-molestation order is treated as a criminal offence. To be prosecuted for the offence, the offender must be aware of the order and its contents.

Similarly, under the Family Act, if a person does anything that they are prohibited from doing by the non-molestation order, without a justified excuse, they will be guilty of a criminal offence.