Domestic violence is a pattern of behaviour which involves violence or other abuse by one person against another in a domestic context, such as in a marriage or cohabitation. Domestic violence can include a number of forms including physical, emotional, verbal, economic and sexual abuse ranging from subtle coercive forms to violent physical abuse that results in disfigurement and sometimes death. Evidence shows that less than half of all incidents of domestic violence are reported to the police yet the police still receive one domestic violence call every minute in the UK.
In recent years the police have become more sensitive to the issues of domestic violence and senior police officers have made it clear that they will not tolerate the dismissal of violence in the home simply as a “domestic” which was traditionally treated as a frustrating waste of time by police officers.
There are now new powers introduced by the Crime and Security Act 2010 to the police known as a Domestic Violence Protection Notice (DVPN) and a Domestic Violence Protection Order (DVPO) which enables the police to put in place protection for the victim in the immediate aftermath of a domestic violence incident. A DVPN is issued by the police and is aimed at the domestic violent perpetrators who present an ongoing risk of violence to the victim with the object of securing a coordinated approach across agencies for the protection of victims and the management of the perpetrators. Under DVPO’s the perpetrator can be prevented from returning to a residence and from having contact with the victim for up to 28 days, allowing the victim a level of freedom to consider their options.
What is the process?
Once the incident occurs and is reported to the police the police will need to secure evidence of the domestic violence incident. Once the police are authorised by a Police Superintendent or above and as soon as the DVPN has been served on the perpetrator it will be valid for 48 hours. If the perpetrator breaches the DVPN they can be arrested, detained in custody and brought before the next available court. Within 48 hours the police attend the local magistrates court to make an application for a DVPO and once authorised by the court it will be valid for between 14 and 28 days. Again, like a DVPN if the order is breached the perpetrator will be arrested.
It is hoped that these two new procedures will go some way to bridge the current protective gap providing immediate emergency protection for the victim and allowing them protective space to explore the options available to them and making informed decisions about their safety in the future.
Domestic Violence has been described as the iceberg problem. Anecdotal evidence suggests it is much more widespread than the number of cases which come before the Courts, these being the tip of the iceberg. It is undoubtedly true that Domestic Violence is the physical manifestation of the exercise and maintenance of power and control by one party of the other.
Historically, the difficulty in providing legal protection for the victims of domestic violence has been practical and evidential. While it is recognised that domestic violence is not always the same as a criminal assault, the criminal law can be very effective and practical remedy.
However, the civil remedy available under the Domestic Violence legislation can provide effective long term protection if the behaviour complained of is, for instance, not physical and / or not within the criminal definition of assault.
In recent years the Police have become more sensitive to the issues of domestic violence. Senior Police Officers have made it clear that they will not tolerate the dismissal of violence in the home as ‘domestics’, which were traditionally treated as a frustrating waste of time by Police Officers.
However, the Protection from Harassment Act has provided considerable assistance in preventing stalking, persistent phone calls and similar behaviour which could only previously be remedied by civil action.
It remains the case that for immediate practical protection the Police must be the first point of call. A victim who is suffering domestic violence should immediately call the Police, who will take practical steps to either remove the perpetrator of the violence or offer the victim suffering the violence protection. The Police may recommend civil remedies to victims where the violence complained of falls short of a physical assault.
There have been problems experienced in some Courts in the practical application of the Domestic Violence legislation as it now stands. Recent legislation has encouraged Judges to be more robust in dealing with violent partners. Where violence is seen to have taken place, Judges are now urged to make an Injunction with a Power of Arrest attached.
Under recent legislation, Judges are allowed less discretion. If there has been violence, a power of arrest must be imposed. This cannot attach to an undertaking so the Judge must make an Injunction. Where there is an Injunction with a power of arrest attached, the Court must allow a full hearing of both sides of the argument to take place. This is timely, costly and can degenerate into a slanging match between the parties as to who did what to whom.
Fortunately some Courts have managed to interpret legislation in a less restricted manner and still accept undertakings from parties to deal with the immediate requirements of protection. However, if there is a serious allegation of violence, Judges usually will consider making an Injunction. This can be costly to the parties.
The Legal Services Commission will not be persuaded easily to fund a case unless there is clear evidence of the need for it. In practical terms this can make it difficult for persona of modest means to be protected by the Domestic Violence legislation. Even those with means may balk at the prospect of paying £500 to £1000 plus, for a legal remedy which may have very short term benefits.
Domestic Violence legislation has been under review and a bill is currently going through Parliament to increase penalties against violent partners. Under the new proposed legislation it is anticipated the following matters will be included in the draft bill:
(a) Broaden the scope of the Protection from Harassment Act
(b) Make breach of a Non-Molestation Order a criminal offence
(c) Consider the issue of provocation in criminal proceedings
(d) Improve the interaction between the Criminal and Civil Justice System
(e) Ensure a multi-agency review following a domestic homicide
(f) Create a Register of Evidence which can be used in all proceedings to prevent the need for repetition by the victim
(g) Discuss the issue of non-anonymity for sufferers of domestic abuse.
Family Solicitors are unsure of the practical implications of any proposals to shift the balance towards criminal proceedings. More research may be required to foresee the impact on other members of the family. A more delicate approach is sometimes needed than the Criminal Justice System provides.
The problem is often not the level of protection afforded by the Courts or the remedy available through Court, but finding a solicitor with sufficient specialist knowledge who can take on the case.
Resolution (formerly known as the Solicitors’ Family Law Association) is a lobby group of Solicitors who have been active in lobbying the Government on domestic violence issues. The Association is committed to a sensitive approach to resolving problems in families. Bernard White is a member of Resolution and we follow their Code of Practice. Our team is able to provide sympathetic, confidential and practice advice with all family matters, including domestic violence issues.
If you need to speak with our experts about Family Law matters, please call our Family Law department on 0113 245 0733 or contact us via our Contact Page.