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Published: Wed, 07 Mar 2018
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or LawTeacher.net
The phrase “domestic violence” is usually taken to mean unlawful violence used or threatened by one spouse or cohabitant against the other. The perpetrator is usually the male partner, and pronouns are used in this chapter on that assumption, but cases of violence by the female against the male are by no means unknown. Violence by adults against children is also regrettably common, but this is discussed in more detail elsewhere.
Legal and social attitudes to domestic violence have changed significantly over the past 150 years or so. At the beginning of Queen Victoria’s reign it was considered quite acceptable for a husband to beat his wife for misbehaviour (just as he beat his children), though traditionally only with a stick no thicker than his little finger. Nowadays the law takes a different view, and a man who assaults his wife (or his children, except by way of reasonable correction) is liable to prosecution as for any other assault.
Re Cochrane (1840) 8 Dow PC 630, Coleridge J
A woman W left her husband for no good reason, and H went after and brought her back forcibly. W then obtained a write of habeas corpus, but the judge subsequently discharged this and ordered that W be returned to H’s custody. Quoting old law books, he said there could be no doubt that “the husband hath by law power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner”. W could regain her freedom, if she wished, by cheerfully performing her part of the marriage contract.
R v Halliday (1889) 61 LT 701, CCR
H threatened his wife W with violence and frightened her to such an extent that she jumped from a bedroom window to escape his threats and injured herself quite seriously: the Court for Crown Cases Reserved upheld H’s conviction for maliciously inflicting grievous bodily harm. W’s action was a foreseeable result of H’s unlawful act, and he could therefore be regarded as having caused her injuries. There was no suggestion that as W’s husband H had any right to use violence against her.
R v Jackson  1 QB 671, CA
A wife W left her husband H for another man; H kidnapped W as she was leaving church and took her home. Reversing the Divisional Court, the Court of Appeal overruled Cochrane and granted habeas corpus, saying H had no right to detain W against her will. If a husband ever had the legal right to beat his wife, said Lord Halsbury LC obiter, that entitlement was now obsolete.
Similarly in relation to sexual intercourse, Sir Matthew Hale in his History of the Pleas of the Crown (1736) wrote: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by the mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.” This rule survived in relation to rape per se until very recent times, though for the past fifty years or more the courts have been prepared to act against physical violence.
R v Kowalski (1988) 86 Cr App R 339, CA
After W had petitioned for divorce, but before the case had been heard, H threatened her with a knife and forced her to perform oral sex on him before submitting to vaginal intercourse. H was charged with rape and indecent assault: the judge directed an acquittal on the former charge but ruled that the latter should go ahead. H pled guilty and appealed on the point of law. The Court of Appeal, affirming H’s conviction but reducing his sentence from four to two years’ imprisonment, said a wife’s presumed irreversible consent to sexual intercourse does not extend to other sexual activities such as fellatio.
The abolition of the marital rape exemption was implicitly confirmed by the revised version of s.1 of the Sexual Offences Act 1956, inserted by legislation in 1994.
There are three major problems in relying on the criminal law to deal with domestic violence. First, criminal law is concerned with punishing the offender rather than helping the victim: fining or even imprisoning a violent husband is unlikely to do much to improve his temper, and the wife may well suffer further violence as soon as they are together again. Second, many people are reluctant to become involved in what is still seen as a private matter between husband and wife, and even the police have (at least until recently) been cautious about intervening in violent incidents resulting from domestic quarrels. And third, the abused wife may herself have mixed feelings about “shopping” her husband, and although wives can now be compelled to give evidence against their husbands in cases of alleged domestic violence, the law cannot ensure the willing cooperation that is needed if the prosecution is to have a real prospect of success. Thus, although the operation of the criminal law cannot and should not be excluded, other remedies are needed too.
Remedies in tort
It is only a few years ago that the courts began to develop a tort of harassment against which relief might be granted by way of injunction, but the gradual and uncertain common law developments have now been overtaken by statute.
Patel v Patel  2 FLR 179, CA
After persistent harassment P obtained an injunction against his son-in-law D, restraining him from entering an area with a radius of 50 yards around P’s home. D breached that order three times: he was imprisoned the first time but only fined subsequently, and on the third occasion the judge discharged the injunction. P appealed, but his appeal failed. The Court of Appeal said harassment was not a tort known to the law: an injunction should not have been granted unless there was a real threat of trespass.
Burnett v George  1 FLR 525, CA
M and W broke off their relationship in 1986, and W obtained an injunction restraining M from “assaulting, molesting or interfering with” her or entering her property. Allowing M’s appeal in part, the Court of Appeal said the injunction against “interference” should be limited to acts calculated to cause W harm. Where there is no matrimonial nexus, said Arnold P, mere “interference” is not an actionable wrong.
Tabone v Seguna  1 FLR 591, CA
A mother and daughter PP sought an order preventing harassment by D, the husband of another daughter; the court accepted D’s undertaking not to assault, molest or otherwise interfere with PP. Eighteen months later PP complained that D had violated his undertaking, and when D failed to appear in court the judge heard PP’s complaints and committed D to prison for 28 days. D’s appeal succeeded: Oliver LJ said where a person’s liberty is at stake every requirement of the law must be strictly observed. Irregularities in the service of notice on D and the fact that he was unable to answer the allegations against him were fatal to the decision.
The Protection from Harassment Act 1997 extends both civil and criminal law. Under s.1 of the Act, a person is prohibited from pursuing any “course of conduct” (including speech) which he knows or ought to know amounts to harassment of another person: the test of what amounts to harassment (which is not defined, but includes causing alarm or distress) is the opinion of the reasonable man. A defence is provided if the defendant can show the course of conduct was pursued to prevent or detect crime, or to comply with any rule of law, or that it was reasonable in all the circumstances.
It is a summary (but arrestable) offence punishable with six months’ imprisonment to pursue any such course of conduct, and s.4 makes it an either-way offence punishable with up to five years’ imprisonment to pursue a course of conduct causing the victim to fear (on at least two occasions) that violence will be used against him. The civil courts have power to award damages and/or an injunction against actual or anticipated harassment, and breach of such an injunction is itself punishable with up to five years’ imprisonment. The criminal courts too, on a conviction under the Act, can make a restraining order against further harassment, any breach of which is similarly punishable.
There are no fully reported cases so far on the application of this Act. Its application to domestic violence is limited in any case, since it cannot effectively be used to keep a man out of his own house, which is what is often needed to secure the safety of his wife (or cohabitant) and/or their children. Injunctions in tort are still potentially important in some cases, however, because most of the “matrimonial” remedies below are available only to spouses, former spouses and opposite-sex cohabitants.
FAMILY LAW ACT 1996
The most important remedies for domestic violence are therefore those to be found in Part IV of the Family Law Act 1996, which comes into force in October 1997. It repeals and replaces the earlier remedies provided in the Domestic Violence and Matrimonial Proceedings Act 1976, ss.16-18 of the Domestic Proceedings and Magistrates’ Courts Act 1978, and the Matrimonial Homes Act 1983, providing two specific types of order and extending the categories of persons entitled to apply for an order. The county court and the High Court retain their existing powers to grant injunctions, but only in support of some existing right.
M v M  1 FLR 225, CA
A divorced couple with four children continued living at the matrimonial home; each of them sought custody of the children. On the judge’s advice, H voluntarily left the home in the children’s interests, and W was subsequently granted a permanent exclusion order against him. H appealed, and the Court of Appeal said the judge had no jurisdiction to make such an order under the 1976 Act, since H and W were no longer living together at the time.
Lucas v Lucas  2 FLR 53, Times 1/5/91, CA
H and W lived in a council house of which W was the formal tenant. After two years in which they had lived in the one house but in separate households, they were granted a divorce by consent. W now applied for and was granted an ouster order against H, and H’s appeal failed. His rights to occupy the house by virtue of the 1983 Act had ceased when the decree was made absolute, so W could use any appropriate means to enforce her right of possession.
Occupation orders under the 1996 Act vary according to whether or not the applicant is entitled to occupy the property, and according to the applicant’s relationship to the other party or parties.
Where the applicant is entitled to occupy the matrimonial home, either by virtue of the general law as a beneficial co-owner or by virtue of “matrimonial home rights”, she may apply for an occupation order under s.33 against anyone with whom she is associated. An “associated person” is defined in s.62(3) as including any present or former spouse, cohabitant or recent fianc(e), anyone who lives or has lived in the same household (other than by way of employment or contract), any close relative, anyone now or previously sharing parental responsibility for a child, or anyone party to the same matrimonial proceedings.
An occupation order made under s.33(3) enforces the applicant’s right to enter and occupy the home and may also exclude the respondent from part or all of the home or from an area around it, suspending or restricting or terminating his own matrimonial home rights or his exercise of any other rights of occupation as may be necessary. An occupation order continues effective indefinitely, or for such period as the court may decide, but it is seen as a temporary measure until permanent arrangements can be made. These permanent arrangements may include a property adjustment order where the occupants are married and seek separation or divorce, but where they are unmarried cohabitants the court has no powers to alter the ownership or occupation rights over the property.
Under s.33(6), the court considering whether to exercise its powers under s.33(3) must have regard to all the circumstances of the case, including the housing needs and housing resources of each of the parties and of any relevant child, their financial resources, the likely effect of any order (or refusal of an order) on the health, safety or well-being of the parties and any relevant child, and the conduct of the parties in relation to each other and otherwise.
B v B (Occupation order) (1999) Times 5/1/99, CA
Following repeated violence by H, W left the family’s council house with her daughter D (then nine months old), leaving H in the house with his son S6 from a previous marriage. W and D were given temporary “bed and breakfast” accommodation, but W now applied for (inter alia) an occupation order against H. Reversing the circuit judge, the Court of Appeal said such an order should not be made because of its effect on S, a “relevant child”. W and D would certainly suffer “significant harm” if the order was not made (though D’s security at her age came mainly from being with her mother), but if it was made then the harm to S would be even greater: he would have to leave his school as well as his home.
Blackstock v Blackstock  2 FLR 308, CA
W left home with the three children, and then applied for an ouster order to remove H from the home so that she and the children could return. The judge, stressing the draconian nature of the order sought, found as fact that W had instigated the violence, that it had not been serious, and that the children and their accommodation needs were not an overriding factor. It would be manifestly unjust to exclude H where W had created the situation, and W could be adequately protected by a non-molestation order. He therefore refused W’s application for an ouster order, and W’s appeal was dismissed.
Gibson v Austin  2 FLR 437, CA
M and W were cohabitants. Their relationship deteriorated and on two occasions W threatened M with a knife. M sought an order to exclude W from their joint home, but the judge refused: he was not satisfied that the knife incidents were as serious as M made out, he said, and a non-molestation order would be enough. M’s appeal failed. The Children Act 1989 makes the welfare of the child the paramount consideration in proceedings under that Act, but Nourse LJ said it does not overrule the decision in Richards so far as orders under the Matrimonial Homes Act 1983 are concerned. [If that is right, the decision in Richards should still apply to orders under the Family Law Act 1996.]
A new feature of the 1996 Act, however, is the requirement of s.33(7) that the court operate a “balance of harm” test. If it appears that the applicant or any relevant child is likely to suffer significant harm (that is, ill-treatment, including sexual abuse of a child, or the impairment of physical or mental health or development) from the respondent if an order is not made, the court must make the order unless it appears that the respondent or any relevant child is likely to suffer as much or even more harm if the order is made.
A former spouse with no existing right to occupy the (former) matrimonial home may still apply for an occupation order against her former partner under s.35. This will give the applicant the right to enter and occupy the home, and not to be evicted or excluded from it, and may also exclude the respondent from the home or part of it or an area around it, restricting or suspending his exercise of his own rights of occupation. Such an order remains in effect for at most six months (subject to renewal as often as the court thinks right), but terminates automatically on the death of either party.
In deciding whether to make an order, and if so in what terms, the court is required by s.35(6) to have regard to all the circumstances, including those in s.33(6) above and also including the time passed since the parties’ separation and divorce and the existence of any pending proceedings between them (including any application for ancillary relief) relating to the ownership of the home. The “balance of harm” test also applies in relation to the inclusion (or not) of provisions excluding the respondent.
A cohabitant or former cohabitant with no existing right to occupy the home may seek an occupation order against the other under s.36 of the Act. “Cohabitants” are defined by s.62(1) as a man and a woman who, although not married to each other, are living together as husband and wife: homosexual or lesbian couples are therefore excluded. The possible terms of the order cover the same ground as those for a former spouse, but the order is valid for a maximum of six months and is renewable once only.
In deciding whether to make an order, the court must consider all the circumstances, including the matters in s.33(6) and also the nature and duration of the parties’ relationship (including particularly by virtue of s.41 the fact that they have not given one another the commitment involved in marriage), the existence of any children for whom the parties share of have shared parental responsibility, the length of time since their cohabitation ended, the existence of any pending proceedings between them relating to the ownership of the home. The court must also consider the risk of harm to the applicant or a child, but is not bound to make an exclusion order even where it decides that such a risk exists.
Where neither the applicant nor the respondent is entitled to occupy the property, s.37 allows a spouse or ex-spouse to seek an occupation order and s.38 similarly allows a cohabitant or ex-cohabitant. The terms and conditions for such an order are essentially the same as those in s.35 and s.36 respectively, but the order is effective only against the respondent partner or former partner and cannot adversely affect the rights of a third party with a right to occupy the property.
Under s.40, the court making an occupation order has a wide discretion to impose on either party obligations as to the repair and maintenance of the property and/or the payment of rent, mortgage instalments or other expenses. It may order the party remaining in occupation to make periodical payments to the other (the so-called “occupation rent”) and to take reasonable care of the house and furniture.
The second type of order made available by the 1996 Act is a non-molestation order, which prohibits the respondent from molesting the applicant or a relevant child. Application may be made by any “associated person” (as defined above), but a court seized of other family proceedings involving the respondent has power to make such an order of its own motion, without a formal application, if it thinks it appropriate. Almost 20 000 non-molestation orders were made by County Courts in 1996 (under the pre-1996 Act law), and an unknown number made by the Family Proceedings Courts – this is about six times the number of ouster orders (now replaced by occupation orders).
F v F  2 FLR 451, Judge Fricker QC
H had a drink problem as a result of which he sometimes became violent; W did not want to leave him but sought a non-molestation order to protect herself. The judge refused to grant the order, and said a non-molestation order is not available where the applicant intends to continue living with the respondent. [This decision has been criticised by some academic commentators but approved by others. Given its origin in an inferior court, it cannot be regarded as an authoritative statement of law.]
Under s.42(5), the court considering whether to make a non-molestation order (and if so, in what terms) must have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and/or any relevant child. A non-molestation order may prohibit molestation generally (which certainly includes violence but covers other conduct too) and/or identify particular prohibited acts. The order remains in effect for a specific period or indefinitely, as the court decides.
Spencer v Camacho (1983) 4 FLR 662, CA
Following her partner’s violence towards her, W sought relief under the 1976 Act; the judge accepted H’s undertaking not to molest W for two months and suspended a formal order. When H broke this undertaking the judge made exclusion and non-molestation orders for three months; following further violence the orders were extended for a further three months. At a subsequent hearing it was established that H had gone into W’s bedroom and searched through her handbag; the judge fined H for this further molestation and extended the orders for another six months. The Court of Appeal allowed W’s appeal against the time limit, and said the orders should run “uintil further order”. A first exclusion or non-molestation order should normally be time-limited, but after repeated violations an indefinite order is often appropriate.
George v George  2 FLR 347, CA
After separation, H gave an undertaking not to assault, molest or otherwise interfere with W. He subsequently wrote here a letter “in extremely abusive terms”, and was formally warned that this was a breach of his undertaking. For this and two face-to-face confrontations in which H used abusive and obscene language towards W, Arnold P sent H to prison for four weeks, and the committal was endorsed on appeal.
Johnson v Walton  1 FLR 350, CA
The court accepted D’s undertaking (instead of making an order) that he would not molest P nor encourage others to do so. A few days later, articles appeared in the national press about their former relationship, illustrated by semi-nude photographs of P allegedly taken by D. P sought D’s committal for contempt of court, but the assistant recorder said D’s alleged conduct (even if proved) did not amount to molestation. The Court of Appeal disagreed, and said it would amount to molestation if D had acted with the intention of causing distress to P. However, in view of the time that had now elapsed, the matter would not be remitted for further consideration.
Scott v Scott  1 FLR 529, CA
During contested divorce proceedings H gave an undertaking not to molest or interfere with W. W was granted a decree nisi, but H would not accept the marriage was really over and made repeated attempts (without any violence) to persuade W to agree to a reconciliation. The judge decided this amounted to a breach of H’s undertakings (even if perhaps it did not go as far as molestation) and terminated H’s right to occupy the matrimonial home. H’s appeal failed.
C v C (Non-molestation order) (1997) Times 16/12/97, Brown P
A man H sought a non-molestation order to prevent his former wife from giving further information to newspaper reporters that would perpetuate the publication of articles offensive to him. The judge refused to make such an order: although there is no legal definition of molestation, he said, the word clearly implies some quite deliberate conduct aimed at a high degree of harassment of the other party, sufficient to call for the intervention of the court. W’s alleged revelations of H’s former misconduct came nowhere near molestation as envisaged by the 1996 Act.
Jurisdiction and procedure
Occupation orders and non-molestation orders can be made in other family proceedings or on a separate application. They can be made by a magistrates’ court (subject to appeal to the High Court), by a county court or by the High Court, but magistrates have power to decline jurisdiction if they think it appropriate and cannot hear any application involving any disputed question as to a party’s right to occupy premises unless the determination of that question is irrelevant to the order.
G v F (Non-molestation order) (2000) Times 24/5/00, Wall J
Magistrates refused to hear an application for a non-molestation order, on the grounds that W and M lived for much of the time in separate households and so were not strictly “associated persons” for the purposes of s.42 of the Family Law Act 1996. Remitting the matter for rehearing (and continuing an existing order in the mean time), Wall J said the courts should give the relevant provisions a purposive construction – they were intended to provide a swift and effective remedy to the victims of domestic violence – and should not decline jurisdiction unless the facts of the case were plainly incapable of being brought within the statute.
Under s.45, the court may make an occupation or non-molestation order ex parte, without prior notice to the respondent, where it considers it just and convenient to do so. Before making such an order the court must consider any risk of significant harm done by the respondent to the applicant or a relevant child if the order is not made immediately, the likelihood that the applicant will be deterred or prevented from pursuing the application, and any reason to think that the respondent knows of the proceedings but is deliberately evading service. If the court does make an ex parte order, then it must soon afterwards give the respondent a chance to make representations as soon as just and convenient at a full hearing.
If in any proceedings for an occupation or non-molestation order it appears that the respondent has used or threatened violence against the applicant or a relevant child, a court making such an order is required by s.47(2) to attach a power of arrest to that order unless it is satisfied that in all the circumstances the applicant or child will be adequately protected without such a power. (In the case of an ex parte order the court is not obliged to attach a power of arrest, but may do so if it thinks there is a risk of significant harm if it does not do so.) A constable may arrest without a warrant any person whom he has reasonable cause for suspecting to be in breach of any provision of an occupation or non-molestation order to which such a power has been attached. This largely overcomes the problems of enforcement caused by the time it takes to have a person committed to prison for breach of a court order. In 1996, under the old law, powers of arrest were attached to some 30% of ouster and non-molestation orders.
Under s.49, any occupation order or non-molestation order may be varied or discharged by the court on the application of the original applicant or the respondent, or (where a non-molestation order was made by the court of its own motion) without such an application.
Section 60 of the Family Law Act 1996 allows the Lord Chancellor to make rules of court enabling “a representative” to apply for an occupation or non-molestation order on behalf of a person who would be entitled to apply for themselves. No such rules have yet been made, and no date has yet been set for this section to come into force. In any event, under s.43 a child under 16 cannot apply for either kind of order except with the leave of the court.
Neil v Ryan  2 FLR 1068, Times 1/9/98, CA
A woman N was attacked in her own home by R, who was thus in breach of a non-molestation order. Allowing N’s appeal against a suspended prison sentence on N, and substituting a month’s immediate imprisonment, Judge LJ said anything less than immediate custody would give the impression that the first breach of a non-molestation order would be condoned.
Hale v Tanner (2000) Times 22/8/00, CA
A non-molestation order was made against a woman T, restraining her from intimidating, harassing or pestering a man H, or threatening any violence against him. A power of arrest was attached to the order, and when T telephoned H more than forty times during a two-hour period the judge committed her to prison for six months, suspended for six months. Allowing T’s appeal and reducing the commital to 28 days (similarly suspended), Hale LJ said a committal for breach of a non-molestation order should (like a criminal sentence) take account of aggravating and mitigating factors. This was T’s first and only breach of the order, it was long-distance harassment rather than face-to-face threats of violence, and as T had not been in court when the original order was made she had not been warned orally of the possible consequences of a breach. In the circumstances the original sentence was manifestly excessive.
A violent husband can be excluded from the matrimonial home by an occupation order as explained above, but many women who have escaped domestic violence do not want to return to their former home, and look for rehousing in the public sector by local authorities or housing associations. Any woman who has been forced to leave her home, whether or not this was a council house, may decide to apply to the authority as a homeless person for rehousing. The Housing (Homeless Persons) Act 1977 imposed duties upon local authorities to rehouse certain classes of applicant, and these duties are now contained in Part III of the Housing Act 1985.
An application for rehousing under this Act must satisfy the following criteria.
- She must be homeless or threatened with homelessness (i.e. likely to become homeless within 28 days)
- She must have a “priority need” as defined in s.59 of the Housing Act 1985. Three categories of priority need are relevant in the present context:
- a pregnant woman;
- a woman who has dependent children residing with her or who might reasonably be expected to reside with her;
- a woman who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.
- She must not be intentionally homeless; a person who is “intentionally homeless” is excluded by s.60 of the Housing Act 1985. In principle this requirement makes obvious sense as a safeguard against abuse, but it can create hard cases: some local authorities, for example, classify victims of domestic violence as intentionally homeless if they have not first sought an order excluding their violent partner from the matrimonial home.
R v Broxbourne BC ex p Willmoth (1989) Times 18/4/89, Farquharson J:
A “battered wife” A applied for re-housing but the localauthority determined she was not homeless and thus did not qualify.Granting certioari to quash the decision, the judge said the risk ofviolence at and near the accommodation A was currently entitled tooccupy, although not conclusive, was a relevant factor that theauthority should have considered (and apparently had not done) in makingits determination
The Code of Guidance recommends that all battered women who do not fall within the other categories of priority need (i.e. who are not pregnant and who do not have dependent children) should be treated as “vulnerable” for the purposes of the Act.
R v Ealing LBC ex p Sidhu (1982) 80 LGR 534, Hodgson J
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