Legal Article: Domestic Abuse and Protective Measures

25 September 2020

Written by: Danielle Johnson, PNLD Legal Adviser
Not reviewed after the date of publication

Domestic Abuse has prevalently featured in the news in recent months, with reports of a significant rise in cases as a consequence of the current Coronavirus pandemic.

PNLD legal adviser Danielle Johnson provides a brief overview of the current measures available, as well as the possible changes to expect from the Domestic Abuse Bill.

Positive action is a requirement in all domestic abuse cases along with the protection and care of victims and children. Where an offence has been committed an arrest will normally be necessary in order to protect a child or vulnerable person, to prevent the person causing physical injury to himself or another, causing loss or damage to property and to allow the prompt and effective investigation of the offence. However there are cases when an arrest may not be necessary or there are insufficient grounds, in these circumstances the following actions should be considered.

Domestic Violence Protection Notice and Domestic Violence Protection Order (DVPN/DVPO)

These civil orders outlined in sections 24-31 of the Crime and Security Act 2010 provide immediate short-term protection for the victim. They should be considered in the preliminary stages of an incident. Essentially the orders ensure the suspect does not return home and provides the victim with an opportunity to receive support without interference.

Section 24(2) of the Crime and Security Act 2010 provides that an officer of the rank of superintendent or above may issue a DVPN to a person aged 18 or over if they have reasonable grounds to believe that:

They have been violent or threatened violence towards an associated person; and

It is necessary to protect that person from violence or a threat of violence by them.

An associated person is defined as a person within the meaning of section 62 of the Family Law Act, section 62(3) outlines a person is associated with another person if they:  

are or have been married/civil partners

are cohabitants or former cohabitants

live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder

are relatives

have agreed to marry one another or entered into a civil partnership (whether or not that agreement has been terminated)

have or have had an intimate personal relationship with each other which is or was of significant duration

are both parents or have parental responsibility in relation to any child or

are parties to the same family proceedings (other than proceedings under Part IV).

Section 25 outlines what the DVPN must state, that it must be served personally by a constable and that they must ask the suspect a for an address for the purposes of being given notice of the hearing of the application of the DVPO. Once a DVPN has been served an application for a DVPO must then follow to the magistrate’s court, section 27 outlines the application process and section 28 details the two conditions that must be met. For a DVPO to be made the court must be satisfied that on the balance of probabilities that:

the perpetrator has been violent or threatened violence towards an associated person; and

the DVPO is necessary to protect that person from violence of the threat of violence.

A DVPO can be made for a period between 14 to 28 days.  Breach of both a DVPN and DVPO and both carry a power of arrest under section 25(1)(b) and 28(9).

Breach of the Peace

Although other criminal offences should always be considered first for example assault, criminal damage and harassment the common law power of arrest for breach of the peace can be considered. This power can be a valuable tool for police officers, allowing the situation in hand to diffuse.

The power must only be used if necessary and if the threat of or renewal of a breach of the peace is both real and imminent. Please note the cases of McConnell (1990) and Mcquade (2001) where it was held the power to arrest for a breach of the peace in a purely private domestic dispute should only be used in 'exceptional' circumstances. If an argument developed further or was likely to affect neighbours there is a greater chance of it becoming a breach of the peace.

The perpetrator must be released once the threat of renewing the breach of the peace has passed. The College of Policing recommend taking the perpetrator some distance away for a period of time and a follow up call or visit later in the shift or in the morning is good practice to ensure victim safety. The perpetrator should also be warned that if they return and the police are again called they could be arrested to prevent a further breach. 

Civil orders

Although officers are unable to give detailed advice with regard to civil orders they should make victims aware of the options available and the powers of arrest associated. These may be pursued alongside other measures such as the DVPN/DVPO which provide a shorter term of protection.

Non-molestation order

A non-molestation order protects the victim from being harmed, threatened and communicated with by the suspect. This can be applied for provided they are an associated person as listed above. The order is usually granted for a term of six to twelve months. Breach of the order is an offence under section 42A of the Family Law Act 1998, or it can still be dealt with as a civil contempt of court matter if the applicant chooses to do so. Emergency applications are often made in the suspect’s absence, known as an ex parte application. After the order has been made the suspect must be notified.

Occupation order

An occupation order can manage the abuser’s attendance at the family home and entrance of surrounding areas.  This can be applied for if the victim owns or rent the home, the home was intended as their matrimonial home, or a shared home as cohabitants. The order is usually granted for between six and twelve months. A power of arrest can be attached to any non-compliance, but it remains a civil contempt of court matter.

Prohibited steps order

A prohibited steps order stops a parent with parental responsibility for a child from exercising that responsibility. The order will outline the conduct prohibited, which could include prohibiting the person taking the child away from other parent’s care, preventing them being removed from school or from the jurisdiction etc. There is no power of arrest attached, but breach of the order is a civil contempt of court.

Domestic Abuse Bill – proposed changes

The Domestic Abuse Bill at the time of writing is currently at the House of Lords for reading, therefore the information below is subject to change before the bill becomes law.

Definition of Domestic Abuse

The new bill seeks for the first time to provide a statutory definition of domestic abuse, assisting to identify abuse by recognising that it is not just physical violence that constitutes abuse.  The new definition includes physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, psychological, emotional or other abuse.  It also includes when behaviour may not be conducted directly at the victim but towards another person, for example their child.

Domestic Abuse Protection Notice and Domestic Abuse Protection Order (DAPN/DAPO)

The new bill will introduce new orders above, which will replace the current DVPNs/DVPOs. They will again provide victims with immediate protection however, violence will not be required.

A DAPN can be issued by a senior police officer at least the rank of inspector if he has reasonable grounds for believing that:

a) the person has been abusive towards a person aged 16 or over to whom they are personally connected (the abuse does not need to have occurred in England or Wales); and

b) it is necessary to give the notice to protect that person from domestic abuse , or the risk of domestic abuse by the perpetrator.

The definition of personally connected is currently very similar to the definition of associated person for a DVPO. However it seems it is no longer required that those who have been in an intimate relationship with each other need to have had a relationship of a significant duration, thus widening scope for the application of the notice.

The DAPN will similarly be followed by an application for a DAPO to a magistrate’s court. Parliament are also looking to introduce other application routes so victims and specified third parties can apply directly through the family courts, furthermore all courts can also make an order without an application during existing proceedings, even if those proceedings are not domestic abuse related. The order will include prohibitions and requirements necessary to protect the victim from future domestic abuse and assist in preventing the perpetrator from carrying out further domestic abuse.

Unlike the DVPO which can only have affect for up to 28 days the DAPO does not have a set duration and will have effect from a specified period, until the occurrence of a specified event or until further notice, providing longer term protection.

The bill also includes the following new measures, amongst others:

the appointment of a Domestic Abuse Commissioner;

placing a duty upon local authorities to support victims and children;

protection for victims and witnesses in court- prohibiting perpetrators from cross-examining in person in civil and family courts and creating a presumption that victims of domestic abuse are eligible for special measures in all courts;

putting Domestic Violence Disclosure Scheme on a statutory footing;

introducing mandatory polygraph tests for offenders following their release on licence.

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