Lecture 10-Handout
Meaning of Domestic Abuse
• Much wider than physical violence (although this is undoubtedly included).
• Can take place within a variety of relationships within a home environment e.g. adult
partners, parents and children, elderly relatives and adult children/grandchildren
living in the same household.
Core Concerns
• Personal Safety
• Shelter
• Non-molestation orders: sections 42, 42A and 49-personal safety
• Occupation orders: sections 33-40 and section 49-shelter
Associated Persons and Relevant Child(ren)
• Both Occupation Orders and Non-Molestation Orders-First Question:
• Is this person entitled to take the first step to secure a Court Order?
• These orders are only available where specific relationships exist between the parties.
• Associated Person-FLA 1996 s62(3)
• Relevant Child-FLA 1996 s62(2)
Non-Molestation Order
• Molestation wider concept than violence Davis v Johnson [1979] AC 264, 334
• Any conduct which can properly be regarded as constituting such a degree of harassment as
to call for the intervention of the Court (Horner v Horner [1983] 4 FLR 50; C v C [2001] EWCA
Civ 1625).
• S42(5)-Court must consider “all the circumstances including the need to secure the health,
safety and well-being of the applicant or any relevant child”.
• Can take into account any relevant factors
• There must be evidence of molestation (C v C (Non-Molestation Order: Jurisdiction) [1998] 1
FLR 554)
• The applicant (or child) must need protection; and
• The Judge must be satisfied on the balance of probabilities that judicial intervention is
required to control the behaviour which is the subject of the complaint (for example see C
v C [2001] EWCA Civ 1625)
• s42(7) the order can be for a specified period or until further order.
• ‘Until further order’ will lasts until such time as either the applicant or respondent applies to
the court to discharge it (s49). Such orders are made only in exceptional cases, for example,
where there is a history of expired injunctions.
• Orders are frequently made for six months, a year, or longer duration where the case so
requires (see for example Galan v Galan [1985] 1 FLR 906, Horgan v Horgan [2002] EWCA Civ
1371).
• 42A Family Law Act 1996 makes breach of a non-molestation order a criminal offence if the
respondent is aware of the existence of the order and, without reasonable excuse, does
anything prohibited by the non-molestation order.
• The offences that amount to an ‘arrestable offence’ now include the breach of a non-
molestation order and thus, the matter will be dealt with by the Police.
• a victim can still pursue their complaint through the family court – it is not possible to punish
the respondent twice though, so either the breach is dealt with by the Police or by the
family court). S42A(3)&(4)
Protection from Harassment Act 1997
• S1(1) A person must not pursue a course of conduct which amounts to harassment and
which he/she knows or ought to know amounts to harassment.
• One off incidents and unconnected events not covered-Lau v DPP
Wider Criminal Law
• General criminal law applicable in a domestic context as elsewhere e.g. ABH, GBH. Consent
is no defence to ABH or more serious injury, even in a sexual or intimate relationship. This
principle exists to prevent vulnerable people from abuse and exploitation-R v Brown 1994
• Serious Crime Act 2015 section 76-Offence of controlling and coercive behaviour
Shelter and Occupation Orders
Home Rights s30
Occupation Orders -These are NOT property rights.
They regulate the occupation of the family home.
Which section of the statute will be available/most appropriate depends upon:
1) The relationship between the parties
2) The basis upon which they occupy the home.
In preventing people with a legal/equitable right to property from occupying and enjoying
that property, Occupation Orders are powerful and unusual legal tools.
Occupation Orders ss33, 35, 36, 37 & 38.
