The story behind the Podcast, Legal Lives: Domestic Abuse – Voices of Hope…
8 April 2020 by Charlotte Knappett
Before I proceed with this blog I must first offer my thanks to Sarah (not her real name) for participating in this podcast. This took courage and I know she is hopeful that her story may help others to reach out for help and support.
I have been practising in the area of supporting domestic abuse victims and general family law for over 15 years. Over that time I have worked with domestic abuse charities and support services in and around Essex.
Within this podcast I am asked to explain my role in Sarah’s case. Sarah and I met when she came to see me at a drop in legal clinic at an outreach centre. I was fortunate to be in a position to be able to help and guide her.
Sarah had already left the family home, and had secured safe and secure accommodation. She had received some support from other services but she was still facing issues with the father of her child and struggling to come to terms with the abuse she had suffered and continued to endure.
Domestic abuse, or domestic violence, is defined as any incident of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are, or who have been, intimate partners or family members, regardless of their gender or sexuality.
This can include but is not limited to emotional, physical, sexual, psychological, financial and economic abuse, as well as harassment and stalking.
Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.
The Family Court has the power to make protective orders for victims of domestic abuse. These powers are entirely separate to the police and the criminal courts, except where I go on to explain below.
For the Family Court to be able to assist, it is necessary for the victim to be associated to the perpetrator, for example this includes:
• Spouses/civil partners
• Former spouses/former civil partners
• Co-habitants and former co-habitants
• Close relatives e.g. parents, siblings
• Parties in an intimate relationship
• Same sex couples
The Court has the power to make two types of order, which people commonly refer to as injunctions.
There is a Non-Molestation Order which prohibits certain types of behaviour such as the use of, or threats of violence, intimidation, pestering and harassment and communication by various means. It can also impose zonal restrictions such as not entering a certain road, or loitering around a property.
These orders tend to last for around one year and it is possible to apply to extend their duration if necessary.
A breach of this order (i.e. doing an act that the perpetrator shouldn’t) is a criminal offence and the police have the power to arrest the perpetrator for breach of a non-molestation order. If found guilty it could result in up to 5 years imprisonment and/or a fine. If for any reason the Police do not prosecute for the alleged breach it is still possible for the victim to ask the Family Courts to consider whether the perpetrator has broken the order.
The second type of injunction is an Occupation Order, which regulates the occupation of the family home. For instance requiring one person to leave the property or enabling someone to occupy the property if they have been forcibly removed.
An Occupation order is different to a Non-Molestation order because if it is breached then it is not a criminal offence. The breach of this order is called “contempt of court” and the Family Court would deal with any breach, not the Criminal Courts. If found guilty of a breach, then the perpetrator can receive up to 2 years imprisonment and/or a fine.
Where it appears to the Court that the perpetrator has used or threatened violence against the victim, or a child, a Power of Arrest should be attached to the Occupation Order unless the Court is satisfied that the victim or the child will be adequately protected without it. A Power of Arrest gives the police the power to arrest the perpetrator and bring them before the Family Court for punishment.
It is possible for these Orders to be made without the perpetrator knowing. We call this “without notice”. These are extremely serious orders, and the Courts do not make them without strong evidence that the victim is at risk of immediate significant harm. It is quite rare for the Occupation Order in particular to be made without notice.
Whether or not the Court grants the Order(s) at the “without notice” hearing, a return hearing, where all parties are required to attend, should take place within 14 days.
If the Order is then opposed by the perpetrator, the Court are then likely to arrange a final hearing, at which both the victim and perpetrator are required to give evidence. It is for the Court to then decide whether the allegations are true on a balance of probabilities, and if the Order should continue. The balance of probability standard means that the court is satisfied the occurrence of the event was more likely than not.
It is possible for the Court to put in place special measures for the victim at Court. It is important that the victim is in a position to give the best possible evidence. For instance the Court can put up screens in court, and arrange for separate waiting areas and video links.
The Domestic Abuse Bill that was entered back into parliament in December 2019 is looking at this issue further.
In this blog I refer to the term “contact”. In Children proceeding these days we have child arrangements orders “to live with” (previously known as residence/custody) and to “spend time with” (previously referred to as contact/access).
The primary focus of working with Sarah was advising her, and representing her concerning her child.
When Sarah and I met, her child was not seeing their father due to concerns for the child’s safety in the father’s care arising from the domestic abuse inflicted on Sarah by the father.
Sarah and I discussed the Court’s approach to cases where one parent is alleging the other parent has been abusive toward the other and/or the child. There has been increasing research and awareness of the impact of domestic abuse on children, and it is viewed as a serious and significant failure in parenting to include failure to protect the child’s carer and failure to protect the child emotionally and in some cases physically.
The Court has to balance the need for children to know and see both parents following relationship breakdown, while ensuring that children are not exposed to harm. It is very rare for the Court to make an order that a child does not see their parent, and in some cases the Court will ensure this happens with safety mechanisms in place, i.e. supervised contact.
In any children proceedings the Court should identify the factual and welfare issues at the earliest opportunity. It is required to consider the nature of the allegations, admission or evidence of domestic violence and its relevance in deciding whether to make an order for the child to spend time with their other parent. The Court must then provide action steps to try to establish whether the allegations are true, to include a contested hearing (as explained above regarding a final hearing in injunctions).
Where domestic abuse is admitted or proven, the Court must also ensure that any order made concerning that child protects the child’s safety and wellbeing and the parent with whom they are living and also it does not expose them to a risk of further harm.
The Court must be satisfied that any contact with a perpetrator of violence or abuse is safe and in the best interests of the child.
Financial support is available for victims
At the time Sarah was eligible for legal aid funding to enable me to advise and represent her in relation to protective orders and children proceedings.
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect and introduced funding cuts to legal aid, meaning fewer people are now able to access legal advice funded by legal aid. It is now necessary for a client to be able to show they are a victim of domestic violence at the hands of the other party, or a child is at risk of abuse, if they want to access legal aid for financial proceedings on divorce and children proceedings.
A change in funding structure has also meant many firms have had to step away from their legal aid contract, reducing the pool of law firms who offer this service. As a firm we still offer legal aid for cases involving social services and parents.
Legal aid is also available for other areas of family law, subject to satisfying the domestic violence gateway and means test, but we are currently at capacity to be able to offer legal aid in these areas.
You can check if you are eligible for legal aid by following this link: https://www.gov.uk/check-legal-aid
Please note that even if you are a victim of abuse legal aid is still means tested.
You can also search for firms by post code at: https://find-legal-advice.justice.gov.uk/
How we can help
Please see the above links to our website which provides more information about the services my firm provides.
Listen to the podcast here – https://www.fjg.co.uk/podcasts