Let Family Courts protect Domestic Abuse victims by attaching Powers of Arrest to orders
Let Family Courts protect Domestic Abuse victims by attaching Powers of Arrest to orders
We urge you take immediate steps to re-empower domestic abuse victims – who need the law’s strongest, unbroken protection on and after separation from abusive partners or ex-partners – by allowing family courts to attach powers of arrest to non-molestation orders (‘domestic violence injunctions’) again.
Family courts were prevented from attaching powers of arrest in 2007, when breach became an offence to be prosecuted in the criminal courts.
The power of arrest effectively deterred breach as a victim’s report to police, that a respondent had used or threatened further violence, required police to immediately arrest them and bring them before a senior judge for contempt proceedings the next working day. Namely, to show why they should not be committed to 2 years custody or given an unlimited fine if found to have broken the injunction. With such instant consequences, an estimated 90% of injunctions were obeyed.
While the trial procedure and standard of proof in contempt proceedings is the higher, criminal one, a court may more easily use its discretion to prefer one side’s version of events to the other’s, where – as is common – there is no corroborative evidence, the alleged incident of breach being so fresh.
The attached power of arrest promoted essential calm for the court to resolve related issues - such as the parties’ long-term accommodation, property, finances and crucially children - which keep victims vulnerable to former partners.
Taking action for breach is now solely a matter for the police and Crown Prosecution Service, not the civil courts. On breach, victims lose both the civil order’s protection, and their legal aid, to undergo the ordeal of testifying in public, criminal law proceedings of uncertain date and outcome – if there is enough evidence, and if they are able and willing to face these.
When at least half domestic killings occur when a victim tells an abusive partner they wish to end a relationship, or following their separation, attached powers of arrest provided continuous victim protection, with swift accountability for perpetrators of breach.
‘The power of arrest restored the balance of power… by giving victims a shield offering real protection.’ His Honour Judge John Platt: The Domestic Violence (Crime and Victims) Act 1 Part 1 – is it working? Family Law Journal, July 2008.
‘I was against the reform at the time and experience shows that it was – despite its laudable aims – a retrograde step… Criminalising breach proceedings led to a huge escalation of police time involved. Each arrest then required a charging decision by the Crown Prosecution Service, adding further delay.’ – His Honour Glenn Brasse in remarks made January 2020 on the website www.cedal.co.uk
An Act of unintended consequences doing ‘more harm than good’ – Edwina Millward, Chair of the Association of District Judges, quoted in The Times, 14th April 2008.
‘Women at risk failed by new domestic violence law.’ Frontpage headline, The Times, 14th April 2008.
‘I didn’t want an injunction. Without a power of arrest it would have been just a stick to poke my perpetrator with and antagonize him.’ Victim, September 2020 who, with her baby, left everything to hide in a relative’s basement far away, until she hoped he had stopped looking for her.
‘When the injunction was broken, I couldn’t do anything. The police took over and said there was not enough evidence to prove breach. The client felt she had no choice but to move away so he did not know her address. He had threatened her, vandalized her car and broken her window.’ Family law solicitor, October 2019
‘I don’t feel protected. I don’t feel safe.’ Victim, on her own with a child, on Radio 4’s Today programme, 24th August 2021, after obtaining a non-molestation order which her former partner, despite serving a community service order, continues to breach, her recent calls to police unanswered.
‘It has to be said most practitioners involved in this area of law find the changes puzzling. There is no reason to think that county courts have dealt with enforcement of the orders which they have made in anything other than a proper and effective way…Yet the power to enforce their own orders by the remedy most valued by practitioners, namely the power of arrest, is to be removed and replaced by reliance on the prosecuting authorities…Confidence in the ability of our legislators to grasp the issues involved is not increased by a reading of the parliamentary debates.’ District Judge Roger Bird prefacing his book, Domestic Violence, Law and Practice 5th edition, 2006.
‘The committal system sent perpetrators a tough message.’ A practising, necessarily anonymous, district judge, in remarks on the website www.cedal.co.uk March 2020.
Professor Gary Slapper ascribes the weakened protection – not just for those in heterosexual relationships but for many other classes of victims – to feminist ideology, which is inherently opposed to civil (private law) protection, believing ‘the war on gender-based violence’ may only rightly be fought in the public arena of the criminal courts : 'Feminists have long argued .. that the allocation of domestic matters to the sphere of private law has led to a denial of a general interest in the treatment and protection of women. By defining domestic matters as private, the State and its functionaries have denied women access to its power to protect themselves from abuse. In doing so, it is suggested, such categorization has reflected and maintained the social domination of men over women.’ Slapper, G and Kelly, D: The English Legal System 16th edition 2015 – 2016, p8 1.3.4.
'A criminal, arrestable offence'
At the time, the proposal to make breach ‘a criminal, arrestable offence’ may well have confused not just parliamentarians and non-legally qualified domestic abuse advisers and police, but also legal practitioners unfamiliar with this area of family law. ‘An arrestable offence’ (the term is now obsolete) is simply a criminal offence carrying a maximum sentence of up to five years, which allows police to arrest without a warrant, on suspicion a crime has been committed. It does not mean an arrest will follow, still less a charge or criminal proceedings.
More on this here.
Why was the change ‘a retrograde step’?
Civil (family) law non-molestation orders, to which judges could attach powers of arrest, were introduced in 1976, after Erin Pizzey’s ‘battered wives’ dominated the media. The women who crowded with their children into her Chiswick refuge were as reluctant as today’s victims to give their former partners criminal records, or engage with criminal proceedings that resolved nothing and simply exposed them to more harm. But as there was then no way of resolving issues tying them to their former partners, many returned – some to their deaths.
In 2007, two women a week on average were killed by their partners or former partners. The figure is now nearer three.
Zoe Billingham, lead inspector of the police response to domestic abuse, in media interviews given in September 2021, speaks of ‘an epidemic,’ while calling for ‘a radical new response.’ Now exponentially-rising numbers of children go into care as family problems worsen, putting them at risk of significant harm. Domestic abuse features in the majority of cases but the law now offers no firm framework for those wishing to permanently extricate themselves and their children from abusive partners or former partners.
By making breach of a domestic violence injunction an offence to be dealt with only in the criminal courts – unlike every other kind of civil injunction – The Domestic Violence (Crime and Victims) Act 2004, implemented in 2007, has spectacularly disempowered victims and clearly not sent perpetrators the ‘strong message’ intended. Government figures for the year ending March 2017 put the annual social and economic cost of domestic abuse at a figure rivalling the defence budget. Yet the continuing, doomed attempt to push victims into the criminal courts by prohibiting civil enforcement continues, suggesting nothing has been learnt.
The Case of Raneem Oudeh
This 2018 case starkly reveals not just the terrifying impotence of the current law but the real danger it poses to victims. Ms Oudeh’s former partner, whom she had reported to the police on several occasions, followed her and her mother into a shisha bar, assaulted them both and repeated former threats to kill. Over the next two hours she repeatedly called police, confirming she had a non-molestation order against him. However, with no power of arrest attached – and with police call-outs to domestic incidents averaging three a minute – there was no legal requirement for them to prioritise her call, by finding and immediately arresting him. While she was phoning the fourth time, he knifed them both to death, a scene witnessed by her teenage sister. When her phone went dead, the police left a reassuring voicemail, promising to call round in the morning.
What defines a victim?
‘I have learned that the definition of a victim is someone who has no control or power over her or his circumstances.’ – Isabel Allende, The Soul of a Woman, Bloomsbury 2021.
We rightly allow legal aid for victims of domestic abuse to obtain non-molestation orders to protect themselves and their children, with legal aid also for related Children Act proceedings. We allow them to empower themselves with a civil injunction, only to disempower them entirely – and at risk of reprisal – when the injunction is breached.
As a solicitor formerly practising family law, now sitting on my local Police, Fire and Crime Commissioner’s domestic abuse scrutiny panel, I ask you take action as a matter of urgency to re-empower these most vulnerable of victims, to restore their confidence in a legal system that once protected them, by allowing family courts to attach powers of arrest to non-molestation orders again, so breaches may once more be promptly and unproblematically enforced in the courts that made them.
Director and Founder, Cedal
The Campaign for Effective Domestic Abuse Laws