Written by: Christiane Rabenstein, PNLD Legal Adviser
Not reviewed after the date of publication - 27 November 2024
On 27 November 2024, Domestic Abuse Protection Notices and Domestic Abuse Protection Orders under the Domestic Abuse Act 2021 are being introduced in the pilot areas of the London boroughs of Bromley, Croydon and Sutton and the Metropolitan District of Greater Manchester. The intention is to provide a simpler, more comprehensive and more flexible protection order regime for victims of domestic abuse. They give the police another tool to deal with such behaviour. PNLD Legal Adviser Christiane Rabenstein gives an overview of the new provisions.
The Domestic Abuse Act 2021
The Domestic Abuse Act 2021 contains a number of measures aimed at supporting victims of domestic abuse, to ensure their confidence to come forward and report their experiences, to assist them and their children and to pursue criminal justice outcomes against the abusers. Most parts of the Act were already in force, such as Part 1 which contains the statutory definition of ‘domestic abuse’ (section 1 of the Act) and includes reference to abuse against children (section 2); Part 2 on the appointment of a Domestic Abuse Commissioner (section 4); and Parts 4 and 5 dealing with Local Authority Support and with the protection of victims and witnesses in legal proceedings. Part 6 extended existing offences, such as the offence of controlling or coercive behaviour to now cover persons not living together or post-separation (see section 76 of the Serious Crime Act 2015), the offence of disclosing private sexual photographs and films to cover threats to disclose such material (now repealed and replaced by the offence in section 66B of the Sexual Offences Act 2003), and created new offences of non-fatal strangulation and suffocation (section 75A of the Serious Crime Act 2015). Part 3 of the Act (sections 22 - 56), introducing Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs), came into force on 27 November 2024; note that this applies to certain pilot forces only (these are Greater Manchester, and three London boroughs (Croydon, Bromley and Sutton); however, non-piloting forces need to be aware of these as they are required to inform piloting forces of any breaches and offences such as breach of a DAPO apply to all of England and Wales.
What are Domestic Abuse Protection Notices?
A DAPN is a notice prohibiting a person from being abusive towards another person aged 16 or over to whom the person is personally connected and may provide that the person does not contact the other person or come within a specified distance of any premises where that person lives; the person can also be required to leave the premises or prohibited from entering, as well as prohibited from evicting or excluding the other person from those premises (see section 23). It is a police-led measure designed to provide immediate protection to victims following a domestic abuse incident. It can protect against all forms of domestic abuse where the individuals are personally connected, even when no offence has been committed or can be prosecuted. ‘Personally connected’ is defined in section 2 of the Act and includes people who are, or have been, married or civil partners to each other, parents of the same child, and specified relatives.
A DAPN may be given to a person aged 18 or over by a senior police officer (i.e. at least rank of inspector) if two conditions are met: the officer must have reasonable grounds for believing that the person has been abusive towards another person aged 16 or over to whom the person is personally connected and that it is necessary to give the notice to protect the other person from (the risk of) domestic abuse carried out by that person. Where offences have been committed, as noted in the draft statutory guidance, “a DAPN should never be given as an alternative to charging where the threshold for charging has been met”, though it could be used in conjunction with a decision to charge and bail conditions, provided the conditions do not conflict. One example of a situation where a DAPN could be appropriate is at the point of charging an offender, as the police intervention might trigger further abuse. Matters that have to be considered before giving a DAPN and further requirements, such as information that needs to be included in the DAPN, are set out in sections 24 and 25. Note that the consent of the person for whose protection a DAPN is given is not necessary (section 24(4)), but his or her views should be considered and recorded. Where a DAPN is given by the police, the appropriate chief officer must then apply for a Domestic Abuse Protection Order (see below and sections 28(3) and 29).
What happens if a person breaches a DAPN?
Breach of a DAPN is not an offence. However, a person in breach of a DAPN can be arrested without warrant, held in custody and brought before the Magistrates’ Court within 24 hours, see further section 26. And where a constable has reasonable grounds for believing that a person is in breach of a DAPN, a power of entry is provided for in section 17(1)(cza) of the Police and Criminal Evidence Act 1984 to enter and search any premises for the purpose of arresting that person.
What are Domestic Abuse Protection Orders?
In contrast to DAPNs, DAPOs under section 27 provide longer-term protection and comprise a wide range of possible requirements and prohibitions. Their purpose is the same as for DAPNs, to prevent a person from being abusive towards another person aged 16 or over to whom he or she is personally connected. Victims themselves can apply for a DAPO and may choose to do so if they do not wish to involve the police; also the appropriate chief officer of police, a person specified in regulation or any other person with the leave of the court (see section 28). DAPOs can also be made without an application in the course of certain proceedings by a court dealing with a person, whether the person is convicted or acquitted; other courts also have the ability to make DAPOs in specific proceedings, such as family courts during family proceedings (for details see section 31). As for DAPNs, it is not necessary for the person for whose protection a DAPO is made to consent to the making of the order (section 33(3)).
The conditions for making a DAPO and matters that need to be considered are set out in sections 32 and 33; in certain circumstances the order may even be made against a person without notice of the proceedings (section 34). The requirements included in a DAPO have to be necessary and proportionate and may be prohibitions, restrictions or positive requirements (see sections 35 and 36), examples are prohibition to contact the victim, monitoring or any form of surveillance of the victim, eviction or exclusion from premises, attendance at a drug or alcohol misuse programme, electronic monitoring (see section 37); the notification requirements set out in section 41 are automatically part of every order. The length of the order and requirements placed on a person can be made to suit the individual needs of the victim and address the abuser’s behaviour.
Breach of a DAPO is an offence under section 39, this is any failure to comply with a requirement imposed by the order, such as failure to keep in touch with the responsible person for supervising compliance with the requirement, failure to notify this person of a change or lack of home address (section 36(7)) and failure to comply with electronic monitoring requirements (section 37(8)). It is also an offence to fail to comply with notification requirements under section 43, this includes failing to comply with any requirement imposed (section 43(1)(a)), or knowingly give false information in purported compliance with a notification requirement (section 43(1)(b)). The general powers of arrest under section 24 of the Police and Criminal Evidence Act 1984 apply. The police are responsible for enforcing, and responding to any reported breach of, all DAPOs, whether they were applied for by the police or not. For warrants for arrest see section 40 and Schedule 1.
For further details on DAPNs and DAPOs refer to sections 22 to 56 of the Domestic Abuse Act 2021; more information is provided in guidance published by the government, Domestic abuse protection orders and protection notices and in the Home Office Policy Paper Domestic Abuse Protection Notices / Orders factsheet. Amongst others, the statutory guidance sets out multi-agency information sharing and safety planning that is required at all stages for these measures to have the desired effect.
A final word
Due to their broad scope, DAPNs and DAPOs are aimed at protecting from all forms of abuse as defined in section 1, beyond physical violence and threats, this may include sexual abuse, violent or threatening behaviour, controlling or coercing behaviour and psychological or emotional abuse. They will be piloted and evaluated for an expected two years in selected police forces and courts to assess whether they meet their objectives and provide better protection for victims than the existing measures. During that time, Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs) continue to apply in non-pilot areas. Once DAPNs and DAPNs are available nationwide, they will replace the existing DVPNs and DVPOs. All other protective orders, including Non-Molestation Order, Occupation Orders and Restraining Orders, will remain available and it is currently not planned to repeal them.
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