Domestic abuse and the law
Civil law
During the 1990's the need to provide better protection from domestic violence was highlighted by a number of reports. In 1997 the Family Law Act 1996 came into force. Further rights to protection under civil law were provided by the Domestic Violence Crime and Victims Act 2004, which came into force in 2007. The main provisions are:
Non - molestation orders
These provide protection from all forms of abuse and violence. They can be used to order someone to stop using or threatening violence against either another adult or a child. They can also be used to order someone to stop their intimidation, pestering or harassment of an adult or child.
The non-molestation order can include very specific instructions, for example, it could order an ex-partner to stop telephoning the applicant at work.
Those who apply for this order must be 'associated' to the person they seek protection from. This includes those who are married to each other, those who've lived together, people from the same household (not tenants or lodgers) and relatives.
The Act covers same sex couples and people who've had a relationship but who've not lived together.
In the case of children, it relates to the child's parent or those who have parental responsibility.
Orders are normally granted for a period of 6 months.
A non - molestation order now automatically comes with powers of arrest. Breaching the order attracts a maximum 5 year prison sentence.
Occupation orders
An occupation order can do several things. It can enforce the applicant's rights to remain in the home, require the other party to allow the applicant to enter or occupy the home, prohibit or restrict the other party's rights to occupy the home, exclude the other party from the home or a defined area around the home.
An application for an occupation order can be made by a person who is entitled to occupy the home either because they are the legal owner or tenant or if they matrimonial rights to the property.
There are also various temporary orders that can be made in relation to a former spouse or cohabitant who is not entitled to occupy the home.
A temporary occupation order can also be granted in respect of properties where neither parties have entitlement to occupy, for example, where the couple having been lodging at a friends house or are squatting.
Undertakings
In proceedings for an Occupation or Non Molestation order, the Court has the power to accept and Undertaking by the respondent to do, or refrain from doing, certain acts. This is a solemn promise to the Court by the respondent and is sometimes accepted instead of having to continue with proceedings. An Undertaking does not have powers of arrest attached to it. However, if an Undertaking is broken, this is considered contempt of Court and can be dealt with by a fine, imprisonment or both.
Applying for orders
Applying for orders in the York and North Yorkshire areas generally takes between 7 and 10 days. However, an emergency non-molestation order can be obtained within 2 days.
Finding a local solicitor
When deciding on which solicitor to use it is important to check that they have significant experience in the area of Family Law. Some local solicitors will take a particular interest in domestic abuse. It might be helpful to check whether they are for instance, members of the local Domestic Abuse Forum before making a decision.
Most solicitors will provide 30 minutes of free legal advice. IDAS can attend solicitor's appointments with victims of abuse.
Criminal law
There is no specific offence of 'domestic violence'. However, a range of charges can result from acts of 'domestic violence'. These include assault, harassment, false imprisonment, rape, criminal damage and murder.
The police and Crown Prosecution Services in York and North Yorkshire are committed to taking positive action against perpetrators of domestic abuse and are working towards reducing repeat incidents of domestic violence. For more information on the way the police work download the police policy.
Very few reported incidents of domestic violence result in conviction. In part, this is due to the reluctance of victims to press charges or proceed. Attempts to build the confidence that victims have in the criminal justice system have resulted in the creation of specialist courts (York, Selby, Scarborough) and the employment of specialist advocates to assist victims through the criminal justice system.
There are other attempts to make it easier for victims to get justice including the creation of 'Making Safe' schemes around the county.
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