Domestic Violence in UK Law

In my judgment, para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships have permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain. A construction which precludes an applicant, whose relationship has in fact broken down as a result of domestic violence, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule.

That being the case, it seems clear to me that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on.

The introduction in 2002 of "other" violence into a statute which was previously concerned only with domestic violence also raises questions. They are readily answered, if I am right that the concept of domestic violence in 1996 was already wider than physical contact. As Miss Nathalie Lieven QC for the appellant points out, the introduction of "other" violence in 2002 cannot possibly have been intended to cut down the meaning which the statute already had.

At first sight it is curious that Parliament has maintained the special term "domestic violence". Section 177(1) now applies to cases where it is probable that continuing to occupy accommodation will lead to "domestic or other violence" -"other" violence being violence from people, such as neighbours, who are not associated with the victim. Subsection (1A) then says that violence is "domestic violence" if it is from a person who is associated with the victim.

If however there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important. There is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.

Having asked the question, however, the answer must be that, as a matter of principle, domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can only be one factor in a very complex equation. There will be contact cases in which it is decisive against contact. There will be others in which it will be peripheral.