Domestic violence

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Definition

Yemshaw v Hounslow LBC- 'Domestic violence includes physical violence, threatening or abusive behaviour, and any other form of abuse which directly or indirectly may give rise to the risk of harm' Lady Hale.

Government 2012- 'any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse of those aged 16 and over, who are or have been, intimate partners of family members regardless of gender or sexuality. This abuse can encompass but is not limited to: psychological, physical, sexual, financial and emotional abuse.' Forced marriage, honour based violence and FGM are included.

s76 Serious Crime Act 2015 criminalises controlling or coercive behaviour in an intimate or family relationship. Maximum of 5 years in prison or a fine, or both.

LAPSO defines it as 'domestic violence means any incident of threatening behaviour, violence or abuse, (whether psychological, physical, sexual, financial, or emotional) between individuals who are associated with each other.

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Divorce

Domestic violence often comes under unreasonable behaviour, which can take the form of an act or omission. Eg threatening violence, verbal or emotional abuse. It must have an effect on the victim. The petitioner must not be able to tolerate the behaviour.

Richards v Richards- wife made flimsy allegations against her husband. She left the home and wanted to return there with the children. She sought an ouster order, requiring her husband to vacate the property. The application was granted at first despite the judges reserves. The HoL overturned the thoroughly unjust order. 

Non molestation orders-

s42 of the Family Law Act 1996 allows the court to make an order which prevents the respondent from molesting an associated person or relevant child. Domestic Violence, Crime and Victims Act 2004 makes breach of an order a criminal offence.

Molestation is not defined in the act but can cover any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call the intervention of the court.

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Non molestation

Can take a variety of forms.

  • Homer v Homer- the molestation by the husband took the form of handing the wife upsetting notes and intercepting her on her way to work. Ormrod said molestation did not 'imply necessarily either violence or threats of violence. It applies to conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.'
  • Spencer v Camacho- after a series of other activities for which the woman had obtained non molestation orders, riffling through her handbag was held to be sufficient conduct to amount to molestation.

When an order is made the wording of the order can be tailored to the particular case and can prohibit very specific acts.

If no application is made, the court can make one by its own motion, where it considers one would be of benefit. The court can make the order when making an occupation order. Can be made for a specific period or until further order.

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Non molestation

Who can apply? Can be made in respect of any relevant child (s62(2)) or any person associated with the respondent (s62(3)). A person will be associated if they are spouses or civil partners, or ex spouses or civil partners, cohabitatees etc.

G v F- the court emphasised a purposive construction should be taken when deciding if the applicant was associated with the respondent for this legislation.

Criteria for granting non molestation orders- under s42(5) of FLA. The court must have regard to all the circumstances including the need to secure the health, safety and wellbeing of the applicant, or any relevant child. Health includes physical and mental. This mandates the court to look at the effect of the respondents behaviour on the applicant, rather than the nature of the conduct. The court has a wide discretion and no specific evidence of violence or threats of violence is needed before an order can be made. Standard of proof is civil.

Can an order be made to protect the applicant from unintentional acts? Under the 1996 Act it appears an order can be given regardless of the respondents actual intent. This makes sense given the focus is on the effect on the applicant.

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Non molestation

  • P v P- an abuser who is doing it because of mental illness may be causing as much distress as someone who is doing it out of spite. Sedley- 'the court has an invidious choice to make in a situation like this between the compulsive behaviour of a most unfortunate individual and the health and safety of his family.'
  • C v C- 'some quite deliberate conduct which is aimed at a high degree of harassment of the other party so as to justify the intervention of the court.' Must pass a seriousness hurdle. Narrower than the Protection from Harassment Act.

If the court thinks that disability/mental illness impairs their ability to understand the order, the court may not grant one on the fact that it couldnt be effectively enforced.

  • Banks v Banks- court refused to grant order against a 79 year old woman with manic depression and dementia. The husband was 75 and both emotionally and physically frail, and he petitioned for divorce on the grounds he could no longer cope with her illness. She had been physically and verbally abusive but had not caused physical injury. The judge said her behaviour was a symptom of her condition and was out of her control. He concluded an order would serve no practical purpose, even if she was capable of understanding it.
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Non molestation

Terms of the order- s42(6) is for a specified period or until futher order.

Re B-J- where appropriate for order to last longer, courts not obliged to consider whether such cases are exceptional or unusual.

Ex parte order- s45- without notice to the other side- Court to consider- risk of significant harm to applicant/relevant child if order not made immediately, b) whether it is likely applicant will be deterred or prevented from pursuing the application if an order is not made immediately and c) whether reason to believe that respondent is aware of proceedings but is deliberately evading service and severe prejudice if delay.

Enforcement of an order- s47(2) of FLA compelled the court to add a power of arrest to an order if it appeared the respondent had used or threatened violence against the applicant or relevant child, unless they were satisfied in all the circumstances that they would be adequately protected without the power of arrest. If no power of arrest is attached, the applicant has to apply to civil court for an arrest warrant and enforce the order through contempt of court.

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Non molestation

Under Domestic Violence, Crime and Victims Act 2004 a person who does anything prohibited by a non molestation order without reasonable excuse is guilty of an offence.

Sentencing for breach in civil courts- max of 2 years in prison. While there are no precise tariffs, cases show that breach is taken very seriously.

Lomas v Parle- the court indicated that the sentence imposed for breach of non molestation order as a civil contempt matter should not be 'manifestly discrepant' with the sentences imposed for criminal offences under Protection from Harassment Act. Where the respondent has used violence to breach the order, the court is likely to order imprisonment.

Sentencing for breach in criminal courts- s42A breach is an arrestable offence which can be enforced in criminal courts. Sentence imposed should be primarily concerned with 'ensuring the order is complied with and that it achieves the protection it was intended to achieve.' The nature of the conduct that caused the breach should be considered and if it was violent, prison will normally be ordered. Non violent behaviour that causes a lot of harm may also result in prison.

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Occupation orders

Law Commission- 'in cases of domestic violence where the parties live together, an occupation order ousting the respondent from the home will often be the only way of supporting a non molestation order and giving the applicant effective protection.'

They can be used to prevent the respondent from removing the applicant from the property, require the respondent to allow the applicant to enter the property and remain in occupation, regulate occupation of the property, remove, suspend or restrict the respondents right of occupation or order the respondent to leave the property and exclude them from a defined area (an  ouster order).

Two types- Declaratory- preliminary and given when you have no pre-existing right to occupy. Declares, confirms or extends occupation rights in the home. Regulatory- controls the exercise of the parties rights of occupation.

The courts take occupation orders very seriously and they are less likely to be given than a non molestation order.

Entitled applicants have a legal right to the property whereas non entitled do not.

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Occupation orders

Can only be made in relation to a dwelling house which was or was intended to be the home of the parties. Under s39(2) an occuaption order may be made as a free standing application made under s33 or s35-38 of FLA. Can also be made with other family law proceedings but the court does not have the power to make one by its own motion.

Who can apply? Entitled applicants are those with an existing legal right of occupation in the home, arising from a beneficial or legal interest, or spouses who have a stautory right of occupation in the home (home rights). They can seek an occupation order against anyone they are associated with.

Non entitled applicants are people who do not have an existing legal or beneficial interest, nor do they have home rights. The legislation provides that non entitled applicants can only seek an occupation order against a former spouse, cohabitant or former cohabitant. For a non entitled applicant, the order is simply a short term protective measure to give them suitable time to find a home or await the outcome of an application for property law remedy.

People who can apply are i) those entitled to occupy the property ii) a former spouse...

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Occupation orders

with no existing right to occupy the property where the other spouse is entitled s35, and a spouse who has no existing right to occupy the property where the other spouse also has no right to remain in occupation s37.

Entitled applicants- s33. There are two types- 1) those who are entitled to occupy the home through beneficial estate or other property interest provided the respondent is an associated person. 2) a spouse or civil partner is always entitled to apply under s33 because they have a personal right to home rights. They obtain rights in their partners home. Statutory right of occupation.

What orders can be made? under s33(3) there are a variety of orders. eg under s33(3)(c) the court can make an order which regulates the occupation of the home by either party. May say can only use certain rooms. May do this because completely removing home rights is draconian. Even in violent situations, it may not be appropriate to remove housing rights.

E v E-the husband had attempted to **** the wife. The husband was given an order which excluded him from one of the 2 bedrooms. The wife gave evidence she didnt want him to leave completely.

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Occupation orders

Other factors effected this decision such as the parties not often being in the house together, no children and the wife's uncertain immigration status meant she might be reluctant to bring proceedings.

s33(3)(g) permits the court to 'exclude the respondent from a defined area in which the dwelling house is included.'

Tuck v Nicholls- the order stated that the respondent must not enter 'that area of Kings Lynn in which lies the home.' This broad exclusion granted considerable protection for the applicant as she can bring the respondent before the court if he got close enough to attack her.

For spouse and civil partners, 2 additional orders are available. s33(3)(e) allows the court to restrict or terminate the partners home rights. This frees the sole owner to sell the property if they wish. s33(5) is a protective provision which enables a court to order that the home rights are not brought to an end by the death of the other spouse or divorce. S40 allows additional orders where an occupation order is made under s33. This might be an undertaking to pay rent or mortgage payments.

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Occupation orders

When making a s40 order the court must have regard to all circumstances including financial needs and resources, and their present and future financial obligations. While they appear useful, they have no enforcement mechanism and cannot be enforced under other acts.

Nwogbe v Nwogbe- the CoA identified this gap in the law and recommended the courts did not use this power until an effective solution has been found. This plea was made in 2000 and no action has been taken yet.

Criteria for making an occupation order- can make a declaratory occupation order under s33(4) or a regulatory one under s33(3). A declaratory order will simply confirm that an applicant either has home rights or an existing interest. To enforce this a regulatory order must be obtained. There are two tests. The first, if met, puts a mandatory duty on the court to make the order, while the second gives the court discretion.

The court will first consider whether the balance of harm test under s33(7) is met and if this is satsified, they are under a mandatory duty to make the order. If the balance of harms test is not met, then they have discretion to make an order by considering the checklist in s33(6).

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Occupation orders

Chalmers v Johns- set out the two stages to the inquiry above. They warned that an occupation order is draconian.

The balance of harms test- weighs the harm that is likely to be suffered by the applicant and child if the order is not made, against the harm likely to be suffered if the order is made. Court must make an order but the type is discretionary. The test only applies where 'likely significant harm attributable to the conduct of the repsondent' is established. Harm is defined as the ill treatment or impairment of mental or physical health. Likely can be taken to mean a real possibility. The test only applies where it is established the harm is attributable to the respondents conduct.

B v B- wife had been forced out of council property she shared with her husband due to his serious violence. She left the home with the baby and was housed in a B+B. Husband remained with 6 year old son from previous marriage. CoA found all the baby needed was to be with her mother. Although the current accomodation was unsuitable, it was likely to be temporary as the woman was a priority for accomodation. The husband would not have been high priority. On the balance of harms test, it found greater harm if the husband was ordered out the home.

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Occupation orders

It would cause his son significant harm. He might have to change school for the 5th time in 18 months and would be damaging to his emotional and mental well being. The boys security depended not just on his father but other things such as school. The balance came down on the son suffering more damage than the baby.

This case does not mean violence is allowable. The CoA noted his disgraceful behaviour and came down to the son being from another marriage so there was no chance of anyone else caring for him but the dad.

The general checklist in s33(6)-  the factors are given equal weight and children are not the foremost consideration.

Housing and financial needs and resources- one issue will be alternative accomodation available. If they live in a council house the court may be persuaded by the councils properties. Much depends on if the local authority will rehouse the respondent if he has to leave. If the respondent wouldnt be treated as priority need, but the applicant would if she left, this may persuade the court to make no order.

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Occupation orders

The likely effect of the courts decision on the health, safety and welfare of the child- under s33(6)(c). Although child safety isnt paramount, there are instances where their interests may persuade the court to make an order.

Lee v Lee- the wife had left the home and was unable to find accomodation for herself and her children to live together as a family. The court held the needs of the children to be together with their mother were sufficient to establish the necessity of an order.

The prevailing view is that occupation orders are draconian and should only be made in exceptional circumstances. Courts are more concerned about the impact on the respondent, than on the refusal for the applicant and children.

Conduct- unless the court is satisfied that the respondent has been blameworthy in carrying out physical violence, an order may not be made.

Duration of orders in favour of entitled applicants- s33(10) an order may be for a specified period, until a specified event occurs or until further order. Can be for unlimited duration.

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Occupation orders

Non entitled applicants- the court is just adjusting entitlements between themselves, these may be ejected immediately by a third party. Where the respondent is entitled to occupy the property, a former spouse or civil partner can apply for an order.

One former spouse with no existing right to occupy- s35- when divorce happens the non entitled parties home rights come to an end, unless extended under s33(5). This is a two stage process. The court must decide whether to make a declaratory order which will give the person rights of occupation in the property, and then if this is granted they must decide whether to make a regulatory order. Under s35(6) the court will take into account the general checklist of factors before considering issues pertinent to the former spouse: the length of time since the parties ceased to live together, the length of time since the marriage ended, and the existence of pending proceedings between the parties. A regulatory order in favour of the former spouse can do everything that can be done for an entitled applicant. The factors for this are in s35(7). The balance of harm test also applies under s35(8). The occupation order for a non entitled former spouse will initially last for 6 months under s35(10). The order may be extended on one or more occassions but is intended to be short. Under s35(9) cannot be given after the death of one of the parties and ceases to have effect on death.

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Occupation orders

The approach of the courts to occupation orders- considerations of well being are not enough alone-

Chalmers v Johns- the CoA held that the string of authorities which emphasised the harsh nature of the occupation order had not been overtaken by new provisions in the 1996 order. An order which overrides proprietary interests was only justified in exceptional circumstances.

The courts have been adamant that where divorce is imminent, an occupation order should not be made as a short term measure to give the parties breathing space from the tension surrounding the marital breakdown.

Chalmers v Johns- the relationship broke down and in the year before the relationship ended the police had been called to the house 4 times. The mother left and went to accomodation which was further from her daughters school. No order was made. There was no risk to the child and a longer walk to school is not harm. This didnt come anywhere near to fulfilling the balance of harms test. Had to decide whether to make an order under s33(6). In light of the pending proceedings an occupation order was not appropriate given its severe consequences.

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Occupation orders

  • Re Y- parties had been married for 20 years with 4 children. The wife applied for divorce and the husband applied for an occupation order. The family was dysfunctional with the mother and daughter allied against the father and son. The parents lived in two separate camps in the house. Didnt pass the balance of harms test. The husband had disabilities but this did not stem from the wifes' conduct. There would be more harm for rehousing the pregnant teenager. Then considered s33(6). The matrimonial home could be divided to accomodate them. They already had done this and would be over when the divorce finalised so there was no reason to change it. In relation to conduct they were both as bad as each other. The purpose of the order is 'not to break matrimonial deadlock by evicting one of the parties, nor is it to use publicly funded emergency housing as a solution for domestic strife.'
  • G v G- the wife issued divorce proceedings. They had two children and they all continued to live in the family home during proceedings. This caused tension and the wife requested an occupation order. In the CoA clarified the correct approach to the balance of harms test was the effect on the applicant, not the respondents intention. However on the facts there was no significant harm. The court couldnt make one using its discretion either. The substantive issues of residence and financial relief would be sorted when the divorce finished so an order was not warranted. 
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Occupation orders

It is clear an order will not be made to deal with heightened tension from the process of divorce and separation. This is especially the case when the substantive hearing will be soon and sort out the issues.

Are the courts more willing to make an order in absense of physical violence?

  • S v F- an occupation order was made in absense of physical violence. The parties divorced and the children lived with their mother in the home. When the mother remarried she wanted to sell the home and move out the city. Her son was opposed and wanted to stay so he could finish his exams. Father applied for an order allowing him to live in the home so that his son could stay at school. The court allowed the father to for 6 months or until the ancillary proceedings were done. Even though they allowed without violence, remember this is a positive order. It allowed the husband to move back in, it didnt remove the mother. The mother already lived somewhere else and this was not a draconian order. The only restriction on the wife's property rights was that she couldnt sell for 6 months.
  • Grubb v Grubb- CoA refused the husbands appeal against an occupation order that removed him from his ancestral home. Parties were married for 25 years and had 5 children. 
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Occupation orders

The children were to remain with the mother meaning she needed at least 5 bedrooms. The matrimonial home was a large 6 bed in an ancestral estate. The husband had other properties on the estate. The wife sought an occupation order under s33(6) and didnt allege harm. While the husband wasnt physically violent, he was verbally abusive and controlling. The wife was under stress. It was agreed the current living situation was intolerable. The judge made the order against the husband. In this case the husband had another property to suit his needs, but would not fit in the wife or children. He had sufficient resources to find accomodation elsewhere. It was also a short term measure, as the wife was happy to leave when she found alternative accomodation. The husband was ordered to leave within 28 days and order was to last until financial proceedings between them had finished. Confirms that under s33(6) harm is not necessary for a discretionary order.

  • Dolan v Corby- Court excluded Corby as he was better placed to find new accomodation. Said that there was nothing to suggest an order could only be made with violence. 'Exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent and the important thing is for the judge to identify and weigh all the relevant factors. Dolans psychiatric state made the case exceptional.
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Occupation orders

  • Re L- the CoA made clear that reprehensible conduct was not a pre-requisite for making an order. The children were likely to suffer significant emotional harm by hostility and arguments between the parents. Nothing in the legislation that limited it to only violent behaviour. They should only be made in exceptional circumstances but the fact the children were likely to suffer significant harm if the parents remained under one roof made the case exceptional and justified ordering the husband to leave.

These cases show when considering making an order the court will consider all circumstances and not just conduct and behaviour. Exceptional circumstances does not mean limited to violence.

Enforcement of an occupation order- breach is not a criminal offence. Breach of the order is enforced as contempt of court. The court can attach a power of arrest but this is not done often.

  • Lewis v Lewis- reluctance to attach this stemmed from this case. The court ruled that attaching a power of arrest to an injunction should not be routinely done and use of that power was intended for exceptional situations where they persistently ignore injunctions and make a nuisance of themselves.
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Occupation orders

Under s47(2) some situations have a presumption of power of arrest. This is where there is violence and may be threats of violence. If the court has not attached a warrant of arrest, they must apply to the court for one. If a respondent is arrested under s47 for breach, he will be punished for contempt of court. The sanctions can be a fine or imprisonment for 2 years. The case of Lomas v Parle showed the seriousness of breach.

Breach of a civil order may give rise to criminal proceedings. They may run concurrently and it is important they are not punished twice for the same offence.

Lomas v Parle- the CoA laid down guidelines for sentencing in concurrent proceedings. It is 'essential that the second court be fully informed of the factors and circumstances reflected in the first setence to ensure that the defendant is not punished twice. The first court, most likely to be civil, should not second guess the likely outcome of the second court, or alter its sentence to take account of this. The civil contempt proceedings must be dealt with swiftly and decisively in order to ensure that this information is available to the court determining the criminal penalty.'

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Undertakings

An undertaking is a promise given by the respondent to the court which is enforceable like a court order. This can happen in non molestation cases and occupation orders. While it can be enforced through contempt of court, it cannot have a power of arrest attached. Cant do an undertaking when the court would have to attach a power of arrest or where it is necessary to make a non molestation order under s42A. Mainly not allowed to make one where there has been violence or a threat of violence.

Ex parte orders-

In an emergency the normal notice provisions can be dispensed with and the court can make an order ex parte (without notice). s45 allows this. Should only be used when there are compelling reasons for doing so. They are rare but are more likely to be made for a non molestation order. The criteria focuses on when it is necessary or desirable to do so. a) cases where the respondents conduct creates a risk of significant harm to the applicant unless the order is made immediately. It is more likely the significant harm threshold will be met when there has been physical violence or threats of imminent violence. May by done when the applicant is scared the respondent will act violently to being served with proceedings. b) recognises the real risk that applicants may be deterrred from pursing an application if an order is not made immediately. 

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Ex parte orders

c) the respondent may be deliberately evading service. Where an ex parte order is granted, it should be strictly limited in time and s45(3) makes it clear the respondent must be given opportunity to make representations relating to the order as soon as just and convenient at full hearing. 

JM v CZ- found that the usual practice of making an ex parte non molestation order for 12 months with a provision for the respondent to request a return date or hearing on 48 hours notice to discharge or vary the order did not comply with the statutory requirement under s45(3) for a full hearing as soon as just and convenient. Said they can only be used when exceptional urgency. Family court guidance said the order should last no longer than 14 days.

If a non molestation order is made in ex parte proceedings, breach is only a criminal offence if they are aware of the existence of the order at the time the conduct was carried out. 

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Protection from Harassment Act 1997

Harassment- s1(1) creates the arrestable offence of harassment and gives victims both civil and criminal remedies. Person must not pursue a course of conduct that amounts to harassment of another, and which he knows or ought to know amounts to harassment of another. Such a person will be taken to know its harassment if 'a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.' Focuses on the defendants behaviour as well as the impact. The statutory definition is very broad. 

Majrowski v Guys NHS Trust-  May said 'the conduct has to be calculated in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment.' 

A course of conduct must involve conduct on at least 2 occasions and conduct can include speech. Seems to encompass behaviour like the non molestation act, but has to happen twice, unlike a non molestation order. There must be some connection between the incidents complained of. 

R v Hills- the incidents of alleged sexual harassment were 6 months apart and in the intervening period the parties had cohabited and had sexual relations. The CoA said this prevented the events being a course of conduct as they did not possess the 'necessary congent linkage.' 

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Protection from Harassment Act 1997

Person found guilty faces the penalty of 6 months imprisonment or a fine, or both. The court can also make a restraining order when someone is convicted of harassment and the breach of the order will be a further offence. A civil action can also be bought under s3. Damages may be awarded for anxiety or financial loss caused by or resulting from the harassment. 

Singh v Bhakar- the claimant was a Sikh woman who married a Hindu was moved in with her mother in law who caused her 4 months of hell. As a result of this abusive treatment, the claimant was diagnosed with moderate depressive episodes and sought damages. Given the nature of the harassment, and the fact the claimant was a deliberate target, she was given £35'000 in damages. 

Injunctions may also be granted. Any breach can be enforced by the issue of an arrest warrant in proceedings brought by the victim. Breach of an injunction preventing harassment is an offence under s3 as well as contempt of court, but where the defendant is convicted he may not also be punished for contempt and vice versa. Even though the breach of the civil injunction is a criminal offence, the standard of proof required for making the injunction remains the civil one. 

Putting people in fear of violence- s4 states this. No warrant is needed when there has been a breach as the offence falls within the normal arrest powers of the police. 

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Protection from Harassment Act 1997

It is a defence to show the conduct was pursued for the purpose of preventing or detecting a crime, was pursued under a statutory provision, or was reasonable for the protection of themselves or property. The courts seem unwilling to use s4, where although, there was a dispute between the parties, they want to carry on the relationship.

R v Widdows- the CoA held that s4 'was not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in long and predominently affectionate relationships in which both parties persisted and wanted to continue.' 

Restraining order- a court sentencing someone under s2 or 4 can also make a restraining order and breach of it will be a further offence. Can be used to prohibit the offender from engaging in conduct which amounts to harassment or creates a fear of violence. It is an arrestable offence to breach it without reasonable excuse. 

Domestic Violence Protection Orders have become implemented across the UK also. This comes under s12 of the Domestic Violence, Crime and Victims Act 2004. 

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Forced Marriage Protection Order

This is a civil remedy and can be obtained through the family courts. 

FLA 1996 s63A on: forced marriage protection orders by court for the purpose of protecting-

  • a) person from being forced into marriage or from any attempt to be forced into marriage
  • b) a person who has been forced into marriage.

Court need to take into account health, safety and well being of person. Court may accept an undertaking from the perpetrator instead. Covers conduct inside and outside England and Wales. 

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