Domestic Violence Law in the UK - Essay Example

of the of the of the Domestic Violence Domestic violence is defined as coercive behaviour, in which one person abuses another physically, sexually and psychologically, in order to obtain control. Such abuse transpires in the family home, with the occasional involvement of the children1. These offenders could be family members, roommates or partners. In criminal law it is viewed as an act of knowingly causing or attempting to cause or threatening to cause physical harm to a person, who may be a family member or roommate or a household member2. In the United Kingdom, the spectre of domestic violence is addressed by the Family Law Act. Prior to this act, domestic violence was dealt under the provisions of several different acts. This act supplanted them and integrated them into one act3. The previous provisions had been ambiguous, confusing and were unable to deal with all the aspects of domestic violence. They had prescribed different norms for dealing with domestic violence and were applied to a very narrow range of relationships. Different courts had delivered significantly different decisions; and there was considerable variation in the remedies applied by different courts for similar types of domestic violence. The new act did away with this confusion and disparity to a great extent4. The present situation in the UK is that an individual can be prosecuted on charges of domestic violence, through several criminal justice provisions. However, the victims of domestic violence can only invoke the family law act for remedies and civil initiatives, to get protection against such violence. The family law act is preferred by most of the women to initiate civil action against offenders5. There are two reasons for this; first, victims of domestic violence do not want to invoke criminal proceedings against such violence, because once the prosecution is under way, they will be unable to control or stop the process, which will be controlled by the police authorities, who will take decisions regarding the subsequent steps in the process6. These authorities decide whether the matter is to be brought before the Crown Prosecution Service. At this juncture, the victim cannot stop the process and there is risk of subsequent retaliation by the offender against the victim. Secondly, victims of domestic violence are generally women; and many women do not want the offender to obtain a criminal record7. Thus, most women seek non – molestation orders, which imposes restrictive measures on the perpetrator and restrain him from committing such acts in future; and second, occupation orders, which regulate the occupation of the family home. These two orders provide continuous protection, for women, from domestic violence8. The provisions of the family law empower the courts to issue non – molestation orders9. However, the act does not define the scope of molestation; hence the courts can issue such orders for any type of violent activity, other than domestic violence. Courts consider any conduct or behaviour that causes harassment to the victims as molestation and they can intervene and issue non – molestation orders against the perpetrator. Harassing victims includes following them, frequently making phone calls to them, regularly presenting them with obscene material or material that upsets them; all these activities are deemed to be molestation. The law operates against various types of violent activities, and provides protection against such violence. Nevertheless, non – molestation orders do not provide protection to children, as they are issued only on behalf of the applicant; and an additional application has to be made on behalf of the children. This may not be possible in every instance10. Hence, some provisions of the act permit adults to apply for such protection for their relevant children. There is a wider definition for the phrase relevant children under the family law act11. The court, on being satisfied with the identification of relevant children, will issue the necessary protective orders. However, this is not the case with adults. The act permits only a limited class of people to seek non – molestation orders12. There should be some association or relationship between the applicant and the offender; and the family law act defines associated persons13. Non – molestation injunction orders provide protection to the victims of violence. There is a large list of associated persons who are eligible to invoke these orders. Courts do not grant non – molestation orders for persons who are not included in this list. In G v. G Wall J, clarified that the 1996 Act constructively provided protection to the victims of domestic violence14. Courts should not disallow cases of domestic violence, unless the matter dealt with by a case falls outside the statutory scope of the 1996 act15. As such, many people are precluded from invoking this statute, because they do not fall within the list of associated persons. This list of competent associated persons is surrounded by controversy. People in same – sex relationships or homosexuals are omitted from the list, because they are considered to be ineligible to invoke this act16. Several statutes, like the Housing Act17and the Homelessness Act18, require public authorities to protect individuals who are victims of domestic violence. Public authorities are under a legal obligation to provide sufficient assistance, guidance and to make temporary housing accommodation arrangement to the victims of domestic violence; if they are rendered homeless due to such violence. Homelessness may also arise due to threats from partners19. The authorities are duty bound to consider the applications of domestic violence victims, for permanent accommodation in housing arrangements and to act accordingly. In practice there is wide gap between the statutory requirements and the enforcement of these obligations. Moreover, the approach of the local authorities, in such cases leaves much to be desired. Bureaucratic apathy persists in terms of compliance with the legislation and the guidelines provided by the government20. National immigration policies and immigration laws oppose the commitment of the government to protect victims of domestic violence. For instance, immigrants must have secured immigration status to claim social benefits and housing arrangements in the UK. An immigrant without a secured status of immigration cannot be entitled to these governmental services. The government recently implemented the Immigration Rule, which specifically stipulates that individuals who are in the probationary period of two years are eligible to apply for leave in order to stay permanently in the UK21. Individuals under probation must show proof of their being subjected to acts of domestic violence. The evidence of domestic violence has to be in the form of a conviction, court order, evidence from doctors or police statements, statements of social service organisations or certification by services such as women’s refuge or domestic violence support service. However, from the practical point of view, it is not possible for women to seek a place of safety or support. These services are very expensive and beyond the reach of most of these women. Thus they are prevented from access to refuge services or housing arrangements22. There are no adequate remedies for domestic violence against children. The relevant act, does not effectively address the crime of domestic violence. Amendments were made to widen the scope of the definition of physical harm. Subsequent to these amendments, the Children Act addresses any crime that results in impairment, such as loss of eye sight or hearing capacity caused by domestic violence23. The government had enacted laws and provided guidance to family courts but it had failed to implement a legal requirement that could have ensured the safety of children24. The Children Act 1989 was implemented in the year 1991. There were claims of concerns from several social groups such as women’s groups, lawyers and legal practitioners, support workers, academic scholars and refuges with regard to the contact practice. The new act has provided for contact between a child and its violent father25. The concerns over this issue were mainly based on the risks that emerge from domestic violence, for instance women will have to continuously suffer from violence and other abusive acts; children are prone to witness the abuse directly or hear the violence; there will be a possibility that children would be vulnerable to violence if they attempted to intervene and prevent their fathers from using violence or abuse against their mothers; children would tend to follow their fathers in the future by adopting violent behaviour towards women; and there will be indirect influence of the violence on these children, both psychologically as well as physically26. Contact with the father is a concept developed by the UK courts. Domestic violence does not act as a barrier to award the contact. As such courts prepared to award the contact to fathers who have violent behaviour. Mothers should not refuse to comply with contact orders. If mothers object to the award of contact or if a mother refuses to accept the contact order with the objective of safeguarding themselves and their children from the violence of their ex partners, then the courts label such mothers as implacably hostile. By doing so the courts declare that they have vindictive behaviour. If any mother continuously refuses to obey contact order then she will be imprisoned27. Victims of domestic violence can seek the court’s intervention for the issuance of non – molestation and occupation orders. The courts issue those orders under Part IV of the Family Law Act, which came into effect from 1st October 1997. The non – molestation orders prohibit violence and molestation of the victim who sought the orders28. Occupation orders facilitate victims to live in the family home by regulating the occupation of the home. Occupation orders allow persons who have been sent away forcefully form the home to re enter and reside. Offenders of domestic violence will be kept away from family home either for short period or longer periods. Victims can also seek the protection of police in order to stop the violence29. Police intervention is only useful when the victims merely want to stop the violence and is not interested in initiating civil prosecution of the offenders. Victims of violence, mainly women often hesitate to resort to police action. This is because police intervention would bring the issue to the notice of the social services agencies, which would result in their taking away their children from the home in order to prevent further violence towards them. Involvement of police generally ends with the arrest of the offender if any offence has been noticed. As such, the main function of police is to protect the victim and their children from violence30. Stalking has been the most frequently experienced variation of intimate violence, which was experienced by nearly ten percent of women and seven percent of men. Almost fifty percent of women, who had been subjected to intimate violence by their partners, had experienced several types and forms of such violence. This is not the case with men who had not experienced different forms of intimate violence. Rape and serious sexual assaults were perpetrated by close companions of both men and women31. Previously the issue of stalking had been dealt with to some extent, by the then existing legislation, with regard to domestic relationships; and it had been possible to obtain injunction orders from the court32. After the advent of the Family Law Act, it has become possible to obtain orders to prevent molestation33. In November 2004 an act to counter domestic violence was enacted in the UK. This is the first ever legislation to address domestic violence. Prior to this act the provisions of several acts had been employed to deal with domestic violence as a criminal offence34. Sexual harassment, physical assault, criminal damages were considered to be part of domestic violence. Most offences were not considered to be caused by violent behaviour and there were exceptions under the extant legislation, namely the protection from harassment act35. In view of these factors, the new act has not been implemented consistently. Courts are not interested in taking up cases dealing with the crime of domestic violence. The Family Law Act 1996 provides two significant instruments to protect the victims from domestic violence, these are the non – molestation orders and occupation orders. However, there remains the problem of accessing these services, because they are very expensive and time consuming. Perpetrators are frequently breaching these legal injunctions, due to the absence of stricter enforcement36. Works Cited Allen, Michael J. Look Whostalking: Seeking a Solution to the Problem of Stalking. 1996. 15 April 2008 . "Children Act 1989." 1989 CHAPTER 41. Coleman, et al. "Homicides, Firearm Offences and Intimate violence 2005/6: Supplementary Volumen 1 to Crime in England and Wales 2005 -6." Home Office Statistical Bulletin 02/07. Office for National Statistics, 2007. Domestic Violence. 11 November 2006. 15 April 2008 . "Domestic Violence and Matrimonial Proceedings Act 197." "Domestic Violence, Crime and Victims Act 2004." 2004 CHAPTER 28. Domestic Violence. In World of Criminal Justice, Gale. 2002. 14 April 2008 . "Family Law Act 1996." 1996 CHAPTER 27. G v. G. No. 2 FLR 533. 2000. "Homelessness Act 2002." 2002 CHAPTER 7. "Housing Act 1996." 1996 CHAPTER 52. Hudson, Alsatair. Equity & Trusts. Cavendish Publishing. ISBN:1843145170, 2000. P. 505. Kaur, Ranjit. Contact, Domestic Violence and Risk Assessment. 2002. 14 April 2008 . Keltošová, Olga. "Domestic violence." 17 July 2002. Parliamentary Assembly. Council of Europe. 15 April 2008 . Lipshitz, Mordecai and Ingrid Ekström. Domestic Violence and Its Reverberations. Nova Publishers ISBN:1594548625, 2006. Pp 2-4. "Protection from Harassment Act 1997." 1997 CHAPTER 40. "Section 42 of the Family Law Act 1996 ." "Section 62 (2) of the Family Law Act 1996." "Section 62(3), the Family Law Act 1996." Womens Aid. Women’s Aid Briefing Domestic Violence, Crime and Victims Act 2004 . November 2005. 14 April 2008 . Read More