WITH one-in-four women and one-in-six men in the UK experiencing domestic abuse at some point in their lives, domestic abuse is sadly all too common a crime. Lin Cumberlin (pictured above), of Batt Broadbent Solicitors, explains what you can do if you are affected…
Am I being abused? What constitutes an action being defined as domestic abuse?
There is no definition of domestic abuse in English law. Most people believe domestic violence and abuse to be physical violence and threats but, following changes made and more recognition of domestic abuse over recent years, that is now no longer the case. The cross-governmental new definition for domestic violence and abuse is “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, of have been, intimate partners or family members regardless of gender or sexuality”.
Anyone who is being subjected to any form of psychological, physical, sexual, financial and/or emotional abuse is a victim of domestic abuse but the abuse is not limited to these acts alone.
In December 2015 it became an offence to use coercive or controlling behaviour against another person during a relationship between intimate partners, former partners who still live together or family members. If found guilty, the perpetrator could face a maximum prison sentence of 5 years, a fine or both. The offence closed a gap in the law.
If you are being made to feel subordinate or dependent upon someone else because they are isolating you from resources of support, exploiting your resources and capacities for their own personal gain, depriving you of the means needed for independence, resistance and escape and regulating your everyday behaviour then you are being controlled and you are a victim.
Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten a victim. This is not a legal definition.
From 8 March 2014, following a successful one year pilot in the West Mercia, Wiltshire and Greater Manchester police force areas, domestic violence protection orders (DVPOs) were introduced and are now being implemented across England and Wales. They provide a new power to the police and magistrates filling a gap in providing protection to victims and banning a perpetrator with immediate effect from returning to a residence and contacting the victim for up to 28 days giving the victim the opportunity to consider their options and seek support.
Prior to the introduction of DVPOs the police had limited powers and were unable to charge a perpetrator for lack of evidence.
Having been a family lawyer for many years, I recall countless occasions in the past when I have seen clients who have been abused/assaulted by their partners and reported incidents to the police only to be told “It’s a domestic! There’s nothing we can do.” And then advising them to see a solicitor to get an injunction. More often than not there would be a delay in getting an emergency application for an injunction before the court whilst sorting out legal aid or other technical issues, all the while leaving the client exposed to the risk of further abuse. Thankfully, at long last, it appears those days are well and truly behind us.
I no longer live with my partner – can I still be subject to “domestic” abuse?
Yes. If a person is being subjected to any form of domestic abuse, controlling or coercive behaviour from someone they no longer live with, the fact that they are living apart from the other person does not exclude them from being the victim of domestic abuse. If they had a relationship with the abuser, they are likely to be an “associated person” if they fall into one of the following categories:
- They are, were or intend to be married to each other;
- They are, were or intend to be civil partners to each other;
- They are or were cohabiting with each other:
- They live or have lived in the same household with each other (but not as employee, tenant, lodger or boarder);
- They are relatives;
- They have or have had an intimate personal relationship with each other which is or was of significant duration.
How can the law protect me and why should I seek support from a solicitor?
Domestic abuse is prosecuted as part of the CPS Violence Against Women and Girls Strategy (VAWG) which aims to address crimes committed primarily, but not exclusively, by men against women. However, the CPS Annual Violence Against Women and Girls report includes data on all perpetrators and victims, irrespective of gender. The CPS have stated that they are determined to secure justice for all victims including male victims.
If you are the victim of domestic abuse you can:
- Report the matter to the police which could result in your abuser being arrested, cautioned or charged.
- Most police stations have Domestic Violence Units or Community Safety Units with specially trained officers to deal with domestic violence and abuse.
- If the abuser is arrested or charged, the police will decide whether to keep them in custody or release them on bail. Conditions will be imposed if they are released on bail to protect the victim from any further abuse or violence. The final decision as to whether an abuser is prosecuted will be made by the CPS.
- You can request that a police marker be placed on your address to that, in the event of further violence or abuse from your abuser, the police can get to you quickly.
- Apply in the family court for a non-molestation order to protect you (and any relevant child). If, for any reason you want to (or have to) live with the abuser, you can still apply for a non-molestation order.The non-molestation order can prevent your abuser from using or threatening to use violence towards you, intimidating, harassing or pestering you. Your abuser can be prevented from contacting you by any means other than through a legal adviser. They can also be prevented from attending at or contacting you through your place of work. Depending upon whether you own the home you live in or the tenancy to the home is in your sole name, you are not married to your abuser and your abuser has no legal entitlement to your home then the non-molestation order can also stop your abuser from coming to the home. Otherwise, if you want to stop the abuser from coming to your home then you will need to apply for an occupation order.
- Apply in the family court for an occupation order. When making an occupation order the court has the power to order that your abuser move out of or stay away from the home, keep a certain distance away from the home. The abuser can be ordered to stay in certain parts of the home at certain times of the day/night. If you have been prevented from returning to the home, the court can order that you be permitted back in to the home. The court can order your abuser to pay mortgage, rent or certain household bills. When deciding whether to grant an occupation order the court will have to consider a number of factors including:
- The housing needs and resources of you, your abuser and any children
- The financial resources of you both
- The likely effect any order, or not making an order, will have on you, your abuser and any children
- Your and your abuser’s behaviour to one another
- The court may also consider the harm that you and any children might suffer if an order is not granted and the harm that your abuser and any children might suffer if it is.
- The type of occupation order you can apply for, how long the order will last and the factors the court will consider depend on your and your abuser’s legal entitlement to the home.
- In certain circumstances, if it is considered appropriate, the court can order both a non-molestation and an occupation order.
It is important to seek legal advice as your solicitor can advise on whether you may be eligible for legal aid and on what type of application should be made to protect you and any relevant children. Your legal adviser can also ensure that the witness statement you will be required to provide with your application contains all relevant information to support your case.
I’m worried about how my abuser might react – can I take action without them being made aware?
If you require emergency protection or there is a risk of further harm being caused to you if your abuser becomes aware of your application to court, your legal adviser will make your application without notice so that your abuser will be unaware. The court will need to be persuaded that there are good reasons to make an order urgently and without your abuser knowing so your legal adviser will be able to explain this in your supporting witness statement. If your application is successful and you obtain the order sought, the court will arrange a further hearing. Your abuser will then be personally served with a copy of the court order setting out what he should/should not do and advising him of the date of the next hearing which he should attend in order to give his side of the story to the court. You will also be required to attend this hearing at which the court will consider the evidence and decide whether the order should remain in place and, if so, for how long.
I don’t have the means to meet costly legal bills. Is there any financial support available?
The court do not charge any fees for making an application for an injunction. You may be eligible for legal aid to cover your legal fees. Legal Aid is available for those who have experienced or are at risk of experiencing domestic violence for private family law cases. If you want to apply for legal aid, you will need to pass both the “means” (be financially eligible) and “merits” (have a strong case) tests before you can get legal aid. If you are financially eligible for legal aid you will be required to produce evidence of the domestic abuse you have been subjected to support your application. The Legal Aid Agency will only accept evidence of this if it is in a form approved by the Government. There is a list of the types of evidence that you would need to provide and you have to be able to get at least one type of evidence in order to get legal aid.
Batt Broadbent’s family law department is proud to offer 15 per cent discount to Service personnel and their partners.