Duncan Adam looks at the Domestic Violence, Crime and Victims Act 2004 and why it has taken the government two years to implement


Domestic violence is a serious social evil, the impact and prevalence of which should not be underestimated. In 2004, Parliament clearly intended to beef up the protection for victims of such violence provided by the Family Law Act 1996 (FLA) when passing the Domestic Violence, Crime and Victims Act 2004 (the Act), in particular by criminalising breaches of non-molestation orders.



However, in the face of concerns as to whether this ostensibly desirable measure would in fact benefit victims, the government vacillated for more than two years before deciding to implement it. Was it right to have done so? Time will tell.



The Act's most important provisions came into force on 1 July 2007. In summary:

l The definition of 'associated persons' for the purpose of section 42 of the FLA (who can apply and against whom) now includes people who 'have or have had an intimate personal relationship with each other which is or was of significant duration'. The two new criteria are tantalisingly imprecise;

l Section 1 of the Act introduces a new section, 42A, into the FLA which makes breach of an order under section 42 of the FLA (non-molestation injunctions), including without-notice orders, a criminal offence punishable with up to five years' imprisonment. It is this provision that has caused anxiety. Anyone charged with a breach of a section 42 order can elect for trial before a jury with concomitant delay, uncertainty of outcome and greatly increased expense. Contrast this, say the doubters, with the speed of the civil courts;

l There is a duty on the court when making a non-molestation order to consider making an occupation order;

l Breach of an occupation order is not a criminal offence; and

l Powers of arrest can only be attached to occupation orders. In order to retain the jurisdiction of the civil courts, it may now be sensible to phrase 'exclusion zone' orders as occupation orders, for example: 'The respondent having left [address] shall not enter, attempt to enter or go within 100 metres of [address].'



Some suggest it can only protect an applicant living in the property they once shared with the respondent. Others take a more generous view of the pre-conditions of entitlement in section 33(1) of the FLA, that: (a) the applicant has either 'home rights' or some other entitlement to occupy a dwelling whether under a contract or beneficial interest; and (b) the dwelling is, was, or was intended to be the home of the applicant and another person with whom they are associated.



They argue that (b) is sufficiently widely drawn to include cases where the applicant has moved to another home which they share say with a new partner or a child (both of whom would be associated persons as far as they were concerned). Yet those applicants newly qualified as associated persons by the 1 July 2007 amendments may not be in a position to seek an exclusion zone as an occupation order because they may not be able to bring themselves within (b) at all.



It is important that applicants do not ask for separate but identical orders under sections 33 and 42. They may expect to be invited to elect under which section they seek relief.

l If a victim does not want criminal proceedings, they can apply for a warrant for arrest, for breach under section 47(8) of the FLA. This may assist a victim where there is no power of arrest and the police take no action. However, it would be unrealistic to imagine a victim, in the face of, say, a nocturnal breach, weighing up their options. Alternatively, there can be an application to commit on notice using the N78 procedure. Will the Legal Services Commission pay for either?

l A breach of a non-molestation order cannot be punished in both civil and criminal courts. Sections 42A(3) and 42A(4) are not mirror images. The trigger for relief from criminal liability is punishment for contempt. What if the court makes no order on an admitted breach or adjourns on terms? There is a theoretical possibility that a breach of an occupation order and a separate, but overlapping, breach of a non-molestation order (such as entering property and also making threats) could end up being dealt with by two different courts.



General warning

Since breaches of non-molestation orders are now criminal offences, it is inappropriate for orders still to be made in such general terms as 'intimidate, harass or pester'. In Manchester City Council v Lee [2004] HLR 177, Lord Justice Chadwick criticised the wording of an anti-social behaviour injunction drawn in similar terms under the Housing Act 1996 as being too imprecise. Care needs to be taken in the drafting of applications and of orders. The latter should be more specific, for example forbidding acts which the court is satisfied have amounted to harassment, such as sending text messages.



Are undertakings to make a comeback? Section 46 of the FLA has been amended so that a breach of a non-molestation undertaking is not a criminal offence under section 42A, merely a contempt. However, the court must not now accept an undertaking in place of a non-molestation order where: the respondent has used or threatened violence towards the applicant or a relevant child; and it is necessary for the protection of the applicant or the child to make an order so that any breach may be punishable under section 42A.



Thus, putting an applicant in fear of violence is an offence under section 4 of the Protection of Harassment Act 1997, attracting up to five years' imprisonment. They could argue, in appropriate circumstances, that a non-molestation order was not necessary for their protection when an undertaking was on offer, because the 1997 Act could provide protection.



The Family Proceedings Rules 1991 have been suitably amended. New separate (because of the different consequences of breaches) forms are provided for both non-molestation and occupation orders.



As for breaches after 1 July 2007 of orders made before, then the old regime applies. It is possible to apply to extend an old order after 1 July, but it would be preferable to apply for new orders. At the very least, that should reduce any risk of confusion at the police station.



The widening of the group of 'associated persons' is welcome. There has already been an impact on perpetrators confronted with the prospect of up to five years' imprisonment. Yet, instead of a complicated civil/criminal system, would it not have been better to have increased the maximum sentence for contempt in the civil courts to five years? One anticipates many respondents, properly advised, electing for Crown Court trial and pleading 'not guilty'.



District Judge Adam sits at Swindon County Court