Critical Analysis of the Associated Persons Provisions of Part III of the Family Law Act 1996 - Essay Example

Swarna ID 5448 Order # 141083 27 November 2006. Critical analysis of the "associated persons" provisions of Part III of the Family Law Act 1996 (inparticular section s.62(3))     Introduction Domestic violence has become a severe challenge in the modern day era irrespective of the country. It was also observed that the violence in houses was mainly caused by some person closely associated with the victim. Keeping this in view the governments of major countries including United Kingdom have formulated several legislations for protecting the interests of the people. There was domestic violence act in 1990s which was modified by the Family law act 1996 in England. It has become act in 1997 and deals with mainly non-molestation order and occupation order 1. As the ‘associated persons’ clause has major 1:The family law act 1996. http://www.mkweb.co.uk/domestic_violence_forum/DisplayArticle.asp?ID=8453. influence in deciding the nature and extent of domestic violence, it has been mainly discussed under present study. A wide range of people are able to apply for orders under Part IV of family act 1996. Under the previous law, only current spouses and cohabitants could apply for non-molestation orders. Under the new Act, a number of different categories of "associated person" are able to apply for such an order, including current and former spouses, current and former cohabitants, those who have agreed to marry one another, and certain relatives. An associated person other than a spouse, former spouse, cohabitant, or former cohabitant may only apply for an occupation order on a property where they are already entitled to occupy it 2. There is a strong need to balance the interests of innocent associated persons and victims. Helen Reece discussed about the empirical, principled and empirical rationales relating to acts comprising of ‘associated persons’ clause. He opined that with reference to the empirical rationale, the extent of violence that the 2: http://www.dca.gov.uk/family/abfla/chp2.htm. aggregate of associated persons suffers is not high enough to justify privileging associated persons over other citizens with regard to protection from violence. He also pointed that as far as the principled rationale is concerned, the impetus for domestic violence legislation was based on isolation and inequality, which are not experienced in particular by the category of associated persons when taken as a whole. As far as the ideological rationale is concerned, it is saddening to note that intimacy and equality are emerging as the touchstones of a newer rationale for domestic violence legislation, which rightly has more to do with isolation and inequality than intimacy and equality (Helen Reece, 2006). However thorough study and analysis of the section 62 (3) of Part IV of Family law act 1996 is necessary to critically evaluate the role of associated persons. It describes the clear cut situations in which a person can be associated with another person 3. When a person marries with a woman they are considered to be closely associated with each other. The cohabitants or former cohabitants are included under this category. 3:http://www.opsi.gov.uk/acts/acts1996/f1996027.htm#62. However the cohabitants  were defined according to 62 (1) of Family law act 1996 as those persons who are not married but living together as wife and husband 4. Similarly, former cohabitants are those people who lived as cohabitants but did not continue later and not got married. The people who live or have lived in the same household, otherwise than merely by reason of one of them being the others employee, tenant, lodger or boarder are also considered to be associated with each other. The domestic violence and house hold occupation was also discussed by Jill, M.Black etal., (2004) and Brammer,Alison, 2006). The relatives and the people who agreed to marry each other also come under associated persons. "relative", in relation to a person, means (a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that persons spouse or former spouse, or (b) the brother, sister, uncle, aunt, niece 4:http://www.legislationline.org/legislation.php?tid=99&lid=4095&less=false. or nephew (whether of the full blood or of the half blood or by affinity) of that person or of that persons spouse or former spouse, and includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other. Any persons having relation to any child can also be considered to be associated with each other. For this case to be interpreted positively, one must be a parent of the child or atleast has a parental responsibility of the child. "child" means a person under the age of eighteen years; If a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976 5, two persons are also associated with each other for the purposes of this Part if (a) one is a natural parent of the child or a parent of such a natural parent; and (b) the other is the child or any person (i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or (ii) with whom the child has at any time been placed for 5 : Adoption act 1976. http://www.irishstatutebook.ie/1976_29.html. adoption. Adoption order was explained well by section 72(1) of the Adoption Act 1976. A body corporate and another person are not, by virtue of subsection (3)(f) or (g), to be regarded for the purposes of this Part as associated with each other. The domestic violence faced by associated persons of children was explained by Marianne Hester et al., (2000). Similarly those persons who are parties to the same family proceedings also to be treated as associated persons. "Family proceedings" means any proceedings- (a) under the inherent jurisdiction of the High Court in relation to children. The focus has been made by changing some provisions of law that are relevant to adult protection and have been introduced by the Domestic Violence Crime and Victims Act 2004. The Domestic Violence Crime and Victims Act 2004 (DVCVA, 2004) has been introduced to modernise the law on domestic violence. Remedies for domestic violence are principally provided by the family law act 1996, Part IV and this act is amended by the DVCVA 6. This aids in balancing the interests of 6 : Blackstones Guide to The Domestic Violence, Crime and Victims Act 2004. Johnson, Melanie. ISBN: 0199281890. associated persons as the new legislation aims to strengthen the rights of victims and witnesses and includes tougher sanctions for perpetrators. It was also supported by the publication of a joint report by CPS and HM Inspectorate of Constabulary entitled Violence at Home (2004) 7. The report noticed that only five per cent of domestic violence cases result in a conviction and victims are often denied access to civil remedies because of limited access to legal aid. The family law act 1996 significantly extended the law on domestic violence. According to this, relief, in the form of non-molestation orders and occupation orders, can be sought against an associated person. This term encompasses a wider range of people than previous domestic violence legislation, which was limited in its application to spouses and cohabitees, and is clearly relevant to some cases of adult abuse where the perpetrator falls with in one of the categories of associated person of the victim. The definition of cohabitants is extended by the DVCVA to specifically include same sex couples within the term cohabitants. As cohabiting couples are alrea dy 7:http://www.cps.gov.uk/publications/prosecution/domestic/snapshot_2005_12.html. associated persons the particular significance of this is that property owners, spouses and cohabitants are the only associated persons that can apply for an occupation order. The list of associated persons is also modified to incorporate people who have not married or cohabited but who have or had an intimate personal relationship with each other for significant duration. The DVCVA includes a range of strict provisions. Breach of a non molestation order is made a criminal offence punishable by five years imprisonment on indictment (section 1) and common assault becomes an arrestable offence (section 10). The courts are given a power to impose a restraining order for the protection of a victim. In case of vulnerable adults the court interprets in following manner. Vulnerable adult means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect who is significantly impaired through physical or mental disability, through old age or otherwise. Elements of the offence are that the vulnerable adult dies as a result of an unlawful act of a person who was a member of the same household, and who had frequent contact with him. A person who comes to the household frequently and for long periods can be considered as a member of the household, it is not limited to family members and carers. The death must have either been caused by the defendant, or it must be proven that they were aware of the risk of harm and failed to take reasonable steps to protect the vulnerable adult. Three Bills were combined into one and re-introduced in early 1996 as the Family law bill 8. Under the new Act, a non-molestation order prohibits the respondent from: (a) molesting a person with whom he is associated and/or (b) prohibiting the respondent from molesting a relevant child or both of these. The important words for the purpose of thse type of orders are "associated persons". As explained earlier, associated persons include relatives i.e. relatives of an applicant and of his or her spouse, former spouse, cohabitant and former cohabitant. The law now enables protection for the applicant wife from molestation not only against the husband but also his mother and sister if there is evidence 8 : The Family Law Act 1996, A WARNING TO ALL MEN, http://www.c-g.org.uk/about/fla.htm. that they have molested or threatened the wife. A non-molestation order can be made for a specified time or until further order. It can be made in proceedings which are already under progress or on a free standing basis without reference to any other proceedings. Whether or not a molestation order is made depends upon the discretion of the Court. The Court must have regard to all the circumstances including the need to secure the health, safety and well being of the applicant and any relevant child 9. At the same time people should be made aware about the different statutes on Family Law which have been fully revised and updated to provide comprehensive coverage of all the most important legislation on associated persons and Family Law.(Milka Oldham, 2003). This will help in protecting the interests of both associated persons and victims. 9:http://www.ssafa.org.uk/Page_10_D_and_Fl_Consequences.html Bibliography: Brammer, Alison. 2006. Domestic Violence Crime and Victims Act 2004. Journal of Adult Protection. FindArticles.com. 26 Nov. 2006. CPS and HM Inspectorate of Constabulary (2004) Violence at Home. London: TSO. The Domestic Violence Crime and Victims Act 2004 and Explanatory Notes. Available from www.opsi.gov.uk/acts. Helen Reece. 2006. The End of Domestic Violence. Modern Law Review. Volume 69 (5) : Page 770.  Home Office (2005) The Domestic Violence, Crime and Victims Act 2004: The new offence of causing or allowing the death of a child or vulnerable adult. Home Office Circular 9/2005. London: Home Office. Jill M. Black, Jane Bridge, Tina Bond 2004. A Practical Approach to Family Law (Practical Approach Series) p : 736. ISBN: 0199264031. Law Commission (2003) Children: their non-accidental death or serious injury (criminal trials). No 282. Marianne Hester, Chris Pearson, Nicola Harwin. 2000. Making an Impact: Children and Domestic Violence. P: 194. ISBN: 1853028444 Mika Oldham. 2003. Statutes on Family Law 2003-2004 (Blackstones Statute Book Series). P: 528. ISBN: 0199259534 Read More