Support with legal options

There is no specific offence called ‘domestic violence’, but abusers will usually commit one or more crimes against their victims. This covers a broad range of abusive acts and behaviour, from rape, sexual assault, and physical assaults to criminal damage, harassment, stalking, as well as anything else which fits this description: “Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.”

Below is a brief guide to the law surrounding domestic violence and signposts to more information and support.

  • Many people do not realise that there are two sorts of law in the UK: criminal law and civil law. Domestic violence can fall into one or both categories
  • Criminal law applies where a person is charged with a criminal offence such as assault or harassment. Civil law applies to many different areas of law where a person may want to assert his or her legal rights: such as rights under family law, housing law or immigration law;
  • A criminal court can sentence your abuser to various punishments such as a fine or imprisonment. A civil court can grant you civil rights such as a child arrangements order, an injunction or a prohibited steps order.

  • Controlling or Coercive behaviour is a criminal offence, committed when someone to whom you are personally connected makes you feel controlled, isolated, and afraid, and knew or could reasonably be expected to have known he was doing this. Controlling behaviour can include threats, damage to property, controlling your money, repeatedly putting you down such as telling you that you are worthless; and monitoring your whereabouts.
  • Harassment is a criminal offence, committed when an abuser repeatedly behaves in a manner intended to cause you distress. If your abuser put you in fear of violence, that is a more serious criminal offence and will be dealt with more severely by the courts.
  • Stalking has been a specific crime since 2012. It covers behaviour, such as following a person, contacting or attempting to contact a person, monitoring the use by a person of the internet, email or any other form of electronic communication or spying. If your abuser puts you in fear of violence, or causes you serious emotional and psychological harm, then that is a more serious criminal offence and will be dealt with more severely by the courts.
  • Harassment and stalking both require a ‘course of conduct’. If a woman is experiencing harassment a police officer can first issue a ‘harassment warning’ to the perpetrator and if it continues the police can then arrest for harassment. The harassment warning may deter the perpetrator from committing further acts of harassment. It is also useful in showing that the perpetrator knew or ought to have known the effect that his behaviour was having on the victim.
There are many different ways the civil law can help protect you from domestic violence. For example:

 

  • Apply for an Injunction

There are two types of injunctions: a non-molestation order and an occupation order. A non-molestation order is a court order which may prevent your abuser from using or threatening violence, intimidating, harassing, or pestering you.  An occupation order is a court order that controls who can live in the family home; the order can sometimes also exclude the abuser from the surrounding area. You can apply for either or both of these injunctions in the family court. If you need an injunction urgently, you may seek a temporary emergency injunction without the abuser’s knowledge at the judge’s discretion.

  • Apply for a Divorce

Divorce cases are initiated by filing a divorce petition with the family court. On average it takes 1-2 years for a divorce to be finalised.

There is only one basic ground for divorce: the irretrievable breakdown of the marriage. Irretrievable breakdown is proved by establishing one or more of five ‘facts’ for divorce: adultery, unreasonable behaviour, desertion for two years, a two year separation with your spouse’s consent, or a five year separation without your spouse’s consent. For all of these grounds except ground 4, it may be possible to get a divorce even if your spouse does not agree.

During or after a divorce, the court can settle disputes over money and property. The court may deal with financial matters such as the sale or transfer of property, maintenance payments, a lump sum payment or a pension sharing order.

If you are married and your husband or wife owns the property in their sole name, then you will still have legal ‘home rights’ in the property on the basis of your marriage. You can protect these rights by registering a form with the Land Registry. Your husband/wife cannot prevent you protecting your home rights, although they will be informed that you have done so.

If you are married and your abuser is the sole tenant of a rented property, then you also have ‘home rights’ which includes a right not to be evicted from the matrimonial home without a court order.

  • What if I live with my partner and we are not married?

If you are living with your partner and not married, then your rights to a share in your partner’s property are far less than they would be if you were married. There is a myth of a ‘common law wife’. If you separate from your partner and the property was only in your partner’s name, then you may have no rights at all. There are some limited exceptions to this such as where you have contributed to the purchase price of the property or where your partner intended you to have a share on separation. If you have children together, you may be able to apply to the court that you stay in the property to care for the children.

If your partner rents the property in their sole name, your rights to stay in the property are very restricted. There are limited legal rights which might be available to you such as an application to transfer the tenancy from your partner’s name to your name, or an application to stay in the property to care for the children.

  • What about the Children?

Unfortunately, even after separating from their abusers, many mothers find it extremely difficult to protect their children.

  1. If you wish to apply for your children to live with you, you will need to apply for a Child Arrangements Order in the family courts. Or you may find that your abuser has applied to the family courts for a Child Arrangements Order allowing him to have contact with the children;
  2. If your abuser is threatening to take your children out of the country or away from their school, then another order to consider is the Prohibited Steps Order. You can apply to the family court for an emergency Prohibited Steps Order to prevent removal of the child from the country or school or to restrict the child’s contact with a third party.

Role of Cafcass

  1. The Children and Family Court Advisory and Support Service (‘Cafcass’) are involved in child proceedings in the family court. Cafcass are independent social workers who may prepare a welfare report for the court if necessary.
  2. Cafcass will often meet the parents and child(ren) to investigate the case and to prepare their report.
  3. You are entitled to a copy of the Cafcass report by virtue of Rule 4.13 of the Family Proceedings Rules 1991 at least five days before the final court hearing.
  4. If you disagree with the Cafcass report, it’s important to address this by way of complaint to Cafcass as soon as possible. If this is not successful then there is another avenue of a complaint to the Ombudsman. It’s important to apply for an adjournment of your case whilst the complaint is being investigated.

Findings of Fact Hearings

  1. Where there is domestic violence, the courts should apply their Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm.
  2. The Practice Direction states that the court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.
  3. As part of this procedure, the court should listen to the allegations of domestic abuse and make ‘findings of fact’ as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person.
  4. The court must record its findings in writing in a Schedule to the relevant order, and the court office must serve a copy of this order on the parties.

For an excellent source of the law relating to children, please visit this website.

  • Housing and Homelessness

The local authority is likely to have a legal duty to re-house a victim of abuse because in the majority of cases, a victim will be considered ‘homeless’ under the law. A woman is legally considered to be homeless where she is living with a perpetrator or living in a refuge. Although it is sometimes easier to prove a case of homelessness where the woman has dependent children, under the forthcoming Homelessness Reduction Act 2017, the local authority will also have a duty to take reasonable steps to find accommodation for women with no children. If the immigration status of a women is ‘no recourse to public funds’, for example if she is on a visa as a foreign student, then she will not be legally entitled to make a homeless application and should instead approach Social Services for housing and a subsistence allowance.

  • Immigration: The Domestic Violence Concession

Under this concession, women from abroad who are on a five year Family Member visa as the spouse, civil partner or partner of a British citizen (or someone with settled status) who wish to leave their partner because of domestic violence, have been allowed to remain in the UK, even though they were no longer living with the perpetrator.   In order to prove that domestic violence had occurred, you need to provide certain evidence of the abuse such as an injunction, a police caution, a medical report or a letter from domestic violence support organisation/refuge.

Once the application is made, you can also apply for access to public funds for a limited period of three months.

Criminal Court Procedure

If your abuser has committed a crime, the police will investigate the case and pass their evidence to the Crown Prosecution Service (‘CPS’). The CPS will decide if there is enough evidence to charge the abuser with a criminal offence such as assault or harassment. If so, then the abuser must then attend the Magistrates Court to hear the case against him.

For many criminal offences, the abuser will have a choice to have his case heard in the Magistrates Court or to attend the Crown Court for trial by jury. However, for lesser criminal offences such as common assault, the abuser can only be dealt with by the magistrates court.

At the end of the criminal trial, whether the abuser is found guilty or not guilty, the CPS may request the judge for a ‘restraining order’. This is a court order that will prohibit him from certain future behaviours such as threatening or contacting you, or visiting specific places such as your home or work. It is up to the judge whether to grant such an order.

There are many different criminal offences that a perpetrator of domestic violence may have committed. These include:

  • Assault

There are three levels of assault: Common Assault, Actual bodily Harm and Grievous Bodily Harm. Each level depends on the nature of the injuries inflicted and the intention of the perpetrator;

  • Rape

A perpetrator is guilty of rape if: he intentionally penetrates the victim’s vagina, anus or mouth with his penis; the victim did not consent to the penetration; and the perpetrator did not reasonably believe that the victim consented.

Whether the perpetrator ‘reasonably believed’ that the victim consented will be answered by looking at all the circumstances of the case including any steps he took to make sure that the victim was consenting.

  • Sexual Assault

A perpetrator is guilty of sexual assault if he intentionally touches the victim; the touching is sexual; the victim does not consent to the touching and the perpetrator does not reasonably believe that the victim consents.

  • Consent

The law defines ‘consent’ as having the freedom and capacity to choose. Having the freedom to choose means being able to make a proper choice about whether to have sex. For example a person who says they were not able to refuse sex due to anticipated violence may not be seen as having a proper choice.

Support

  • Sexual Assault Referral Centres (SARCs)

These have been set up to support and assist victims of sexual assault. They enable women to receive medical help following an incident of sexual violence including forensic medical examination, counselling or other support. A woman may be taken to a SARC by the police or she can refer herself.

One of the advantages of attending a SARC is that it enables a woman to access the support she needs without having to report the offence to the police. She can have samples taken and stored whilst she decides whether or not to report the offence. There are currently a number of SARCs across England and Wales and more are planned to open. To find the closest to you visit the Home Office website.

  • Domestic Violence Protection Order

This is a court order that can bar a perpetrator from returning to your residence, or contacting you, for up to 28 days. It can be initiated by the police and extended by the magistrates court.

  • The Domestic Violence Disclosure Scheme or ‘Clare’s Law’

The Domestic Violence Disclosure Scheme (DVDS) is often called ‘Clare’s Law’ after the landmark case that led to the implementation of the scheme. Clare’s Law gives a person within a relationship the ‘Right to Ask’ the police if their partner may pose a risk of harm to them. Under Clare’s Law, a member of the public can also make enquiries into the partner of a close friend or family member if they are worried that their friend or relative may be at risk of harm from their partner. If disclosure is deemed necessary, the information is given to the person at risk, not to the applicant.

Clare’s Law also allows the police to decide whether to disclose information to someone, independently of whether they have asked the police for information. This is called ‘Right to Know’.

In both ‘Right to Ask’ and ‘Right to Know’, a panel of police, probation services and other agencies will carry out a range of checks to determine whether disclosure of information is necessary. If disclosure is necessary, trained police officers and advisers can then provide support to victims.

However Refuge believes that if a woman is told that her partner has a history of violence, it is not so simple to leave straight away. Leaving a violent partner is an incredibly difficult step to take. it is also potentially very dangerous because women are at greatest risk of homicide at the point of separation or after leaving a violent partner. Refuge believes that Clare’s Law may help a few individuals but we need to help the majority of victims, not the few. The most effective way to save lives on a large scale is to improve police practice and protect the vital services run by specialist organisations like Refuge.

  • Criminal Injuries Compensation

If you receive a physical or mental injury from a physical attack such as assault, consider applying for compensation from the Criminal Injuries Compensation Authority (‘CICA’).

If you have been the victim of a sexual offence such as sexual assault or rape, it is not necessary to prove a mental or physical injury to get compensation because the experience of these crimes is automatically seen as an injury. You will probably be eligible to receive a set award depending on the type of sexual offence you have experienced.

In order to be eligible for compensation, you must report the incident to the police as soon as reasonably practicable and within two years of the date of the incident. It does not matter whether or not the perpetrator is subsequently arrested or convicted. You also must be considered ‘ordinarily resident’ in the UK to make the claim or have been identified as a victim of trafficking. If you were under 18 years old at the time of the incident, then you need to apply for compensation within two years of having reported it to the police.

If you and the perpetrator were living together at the time of the crime of violence, you cannot apply for compensation unless you no longer live together and are unlikely to do so again. This restriction is put in place to prevent a perpetrator from benefitting from the compensation claimed.

You can make your own application for compensation. Organisations who may be able to assist you with this are Victim Support, CAB and Law Centres.

Issues which fall under both categories include:

  • Female genital mutilation (‘FGM’)

FGM includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. FGM is a violation of the human rights of girls and women. Immediate complications can include severe pain, shock, haemorrhage, tetanus, urine retention, open sores and injury to genital tissue.

More than 125 million girls and women alive today have been cut in the 29 countries in Africa and Middle East where FGM is concentrated.

The Prohibition of Female Circumcision Act 1985, the Female Genital Mutilation Act 2003 and the Serious Crime Act 2015 all state that it is a criminal offence for FGM to be performed in the UK. Further it is now also a criminal offence for UK residents to carry out, aid, abet, counsel or procure the carrying out of FGM abroad on a UK national or permanent UK resident, even in countries where the practice is legal.

Offence of failing to protect a girl from risk of FGM

If an offence of FGM is committed against a girl under the age of 16, each person who is responsible for the girl at the time the FGM occurred will be liable for this offence. The maximum penalty for this offence is seven years imprisonment or a fine or both.

Female Genital Mutilation Protection Order 

An FGM Protection Order is a civil order made for the purpose of protecting a girl against the commission of FGM or protecting a girl against whom such an offence has been committed. Breach of an FGMPO is a criminal offence with a maximum penalty of five years imprisonment.

  • Forced marriage and the law

A forced marriage is a marriage that takes place without the full and free consent of either or both parties. In a forced marriage, a person is coerced into marrying someone against their will. They may be physically threatened or emotionally blackmailed to do so, or they may be a victim of psychological abuse. Forced marriage cannot be justified on any religious or cultural basis.

Forced marriages are not the same as arranged marriages, where a person can choose whether to accept the arrangement or not. In an arranged marriage, families take the lead in selecting a marriage partner but the couple have the free will and choice to accept or decline the arrangement. The tradition of arranged marriages has operated successfully within many communities and countries for a very long time.

Legal Remedies for Forced Marriage

A victim or a designated third party can apply to the civil court for an emergency Forced Marriage Protection Order. The court can make orders to prevent a forced marriage from occurring, to hand over all passports and birth certificates and to stop intimidation and violence. Breach of a Forced Marriage Protection Order is a criminal offence.

Forced Marriage in itself is also a criminal offence. Further, if anyone deceives a person with the intention of causing them to leave the UK to enter into a forced marriage, then this is also a criminal offence.

  • Modern Slavery Act 2015

This law sets out three criminal offences relating to trafficking and slavery: (1) holding another person in slavery or servitude; (2) requiring another person to perform forced or compulsory labour and (3) arranging or facilitating the travel of another person with a view to that person being exploited (human trafficking).

The National Referral Mechanism (‘NRM’) is a framework for identifying victims of human trafficking and ensuring they receive the appropriate care. Under the NRM, certain professionals who think that a person may be a victim of trafficking can refer that person to a government department to have their case assessed. If the government recognises that a woman is a victim of trafficking she may be given important rights such as a right to accommodation, a limited right of residence and support.

    • In an emergency, contact the police on 999, or by texting 18001 101
    • For non-emergency support you can contact the police by dialling 101
    • Rights of Women has a detailed online library of information about the law on domestic violence, which you can find here, as well as an advice service
    • If you are looking for a legal adviser, you can use the links on this Government website
    • Call the Freephone 24-hour National Domestic Violence Helpline, run in partnership between Refuge and Women’s Aid, on 0808 2000 247