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BCL Law Notes Children, Families & the State Notes

Family Violence Notes

Updated Family Violence Notes

Children, Families & the State Notes

Children, Families & the State

Approximately 373 pages

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5: FAMILY VIOLENCE

(i) DEFINING DOMESTIC VIOLENCE

YEMSHAW V HOUNSLOW LONODN BOROUGH COUNCIL 2011 SC
FACTS

  • Y was married and had two child and claimed she was facing emotional, psychological and financial abuse at the hands of her husband (*no physical violence)

  • Y applied to the Houslow Housing Authority, arguing she had been forced from her matrimonial home as a result of abuse but because of the lack of physical violence (and its probability), the Housing Authority rejected the argument that the case involved domestic violence, holding that it was reasonable for her to occupy the matrimonial home and therefore the Authority was under no obligation to rehouse her:

  • Under the Act, a person could be treated as homeless, even if they had a house if it was not reasonable for them to live there and the Act states it won’t be reasonable for the person to live there if it is proable that this will lead to domestic violence

  • Y seeking judicial review, arguing the definition of ‘domestic violence’ should not be confined to physical acts of violence only

  • CA following Danesh held that violence included physical assaults only (cf. threats of violence or other forms of abusive behaviour)

  • Appeal to SC
ISSUE

  • Should the definition of domestic violence be confined to physical violence?
REASONING (LADY HALE)

  • Physical violence is an example of violence, but does not constitute the only form of violence

  • Citing the dictionary and reports/documents from a wide range of bodies which did not restrict the concept of domestic violence to physical attacks

  • Important for housing and family law to take a similar approach to domestic violence to ensure an integrated approach and as the remedies for domestic violence in the FLA included conduct broader than physical violence, makes sense for housing law to take a broad interpretation

  • Although at the time of drafting, P would have had an old fashioned understanding of domestic violence (restrict to the physical), P unable to fix the meaning of violence and a wider meaning was justified under the broader statutory purpose of ensuring a person is not forced to remain living in a home where they will be at risk of harm

  • The new definition: ‘includes physical violence, threatening or intimidating behaviour and any other form of abuse which directly or indirectly may give rise to the risk of violence’
REASONING (LORD RODGER)

  • Agreed with Hale, emphasizing the severity of psychological harm but insisted that the conduct must be deliberate to fall within the definition
REASONING (LORD BROWN)

  • Did not dissent but less happy with the approach being taken, placing weight on the legislative history of the Act which clearly indicated that only physical violence was to be included in the concept of domestic violence

  • Believed as a policy issue, the imperative to re-house victims of physical violence was stronger than where there was no physical violence (ie. a lack of the same urgency to rehouse where no physical violence involved)
DECISION

  • Decision remitted to Housing Authority to determine whether they were under an obligation to rehouse H on the basis of the new definition of domestic violence
IMPORTANCE

  • Definition of domestic violence not to be confined to acts of physical violence
Madden Dempsey: what counts as DV – a conceptual analysis

Summary:

  • MD critiques four influential accounts of domestic violence and instead presents an analysis of DV as either strong or weak, centering around three keys elements violence, domesticity and structural inequality

  • She develops an explanatory model of DV based on these elements

Introduction

  • The legal academic literature has failed to employ insights developed in the sociological literature to examine the underlying conceptual question of what counts as DV = regrettable failure

  • The aim of the article is to set forth a clearly developed conceptual analysis of DV in order to bring clarity to the existing legal debates

  • Underlying approach of the article is the idea that DV offenses call for a distinct conceptual analysis and the article provides a moral map that can in part guide the exercise of criminal justice policy in DV cases

Three elements of DV: violence, domesticity, structural inequality

  • 1. Violence:

  • Many accounts of violence incorporate some strong notion of illegitimacy into the meaning of violence and some go so far as to equate all violence with normative illegitimacy = legitimist accounts conceive of violence as illegitimate by definition and adopt a narrow conception of what counts as violence, typically restricting focus to the use of direct, physical force

  • MD rejects traditional legitimist accounts but uses the concept of illegitimacy to further analysis, by dividing categories of action into legitimate and illegitimate

  • Aims to specify the normative system which is invoked by relying on the legitimacy concept the normative system invoked is that of morality

  • When an act is described as legitimate or illegitimate, it is used in the sense that it is morally legitimate/illegitimate

  • Structuralist accounts: conceive of all violence as illegitimate by definition and adopt a broad view of what counts as violence, including the direct, physical use of force as well as the existence of structural inequalities (structural violence)

  • Rejects structuralist accounts but further the analysis of DV by using the concept of structural inequality as a necessary element of DV in the strong sense

  • A critique of legitimist accounts:

  • Rejects the first premise of legitimist accounts which claim all violence is normatively illegitimate

  • The first problem arises when legitimist accounts attempt to identify what counts as violence as an empirical matter based on their understanding of violence as a normatively illegitimate matter

  • Working from the normative to the empirical obscures important ways in which the concept of violence actually functions in the English language (ie. The...

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