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Domestic Violence Notes

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Supervision 9 - Domestic Violence Protecting Vulnerable Adults: Domestic Violence Crentey notes husbands had "Reasonable chastisements" of their wife as Blackstone said the two were assumed in one, and as man represented both, he had to keep his wife in line!
* Opuz v Turkey said positive obligations on state to protect against domestic violence under Arts 2-3. While not considered, less significant abuse would fall under Art 8. While this is qualified, Art 17 prevents defendant's pleading breach of their rights to prevent state intervention.
* Where victim withdraws complaints, different views: Chaudhary & Herring say as wider society is affected, the state must intervene ignoring V's autonomy. Conversely, Hoyle & Sanders say that we should empower V's autonomy. Opuz v Turkey said breach by simply condoning V's withdrawal as exclusively a family matter and endorsed the CPS approach of "reasonable prospect of conviction" and "public interest" tests. Criminal Law Protection (Punishment of D)
* OAPA 1861
* Protection from Harassment Act 1997 - can grant civil law injunctions under s5A. Civil Law Protection (Protection of V)
* The common law prohibits assault, battery and false imprisonment as well as harassing behaviour leading to psychiatric injury per Khorsandjian v Bush. But need proprietary right to base claim so lacking!
Family Law Act 1996 Part IV
* Functional approach to protection: applies to all cohabitants, relatives, married, civil partnership etc as defined in s62. So no gender, sexuality, formality issues.
* Provision for third parties to apply for order on V's behalf under s60 FLA. Burton says this allows family to protect V. Chaudhary & Herring say their need for protection justifies intervention against their wishes. But no rules of court established for this yet.
* The court can make any of these orders ex parte under s45 but a full hearing must be held ASAP with right to set aside order per s45(3) to avoid HRA breach.
* Non-Molestation Order (s42 FLA)
* These can be made in ANY family proceedings per s42(2).
* This is undefined per Law Commission proposals.
* It is clear from s42(5) it is for safety, wellbeing and health of A/child.
* So stalking (Vaughan v Vaughan), persistent telephone calls (Horner v Horner) but must be coupled with an intent to cause distress (so refused if involuntary as in Banks v Banks as can't control behaviour even if understand order. Conversely, in G v G (Occupational Order) court said fault is irrelevant it is the effect that matters) per Johnson v Walton.
* The order can last for a defined period or indefinitely. Lady Hale in Re BJ (Power of Arrest) that it wasn't oppressive as it was refraining from unacceptable conduct. 26

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