Domestic Violence: The New Law
| Author | John Murphy |
| Published date | 01 November 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02697.x |
| Date | 01 November 1996 |
LEGISLATION
Domestic Violence:
The
New Law
John
Murphy”
After
a
torrid passage through Parliament, the Family Law Act
1996
(hereafter,
‘the
1996
Act’) finally received the Royal Assent on
4
July
1996.’
This article is
concerned only with the domestic violence provisions of the Act. In essence, they
are substantially the same
as
those formerly located in the Family Homes and
Domestic Violence Bill
1995,
which was ‘lost at the eleventh hour because of an
uninformed campaign by a tabloid newspaper supported by
a
minority of
Conservative Members’2 who were scaremongered into believing that it
undermined what were labelled ‘traditional family values.’ In finally reaching
the statute book, albeit subject to some limited amendment and reordering of the
clauses, Part IV of the
1996
Act lays to rest the complex and inadequate regime
formerly contained in three separate pieces of legi~lation.~ It replaces it with an
ostensibly simple set of remedies, available in all courts having family law
jurisdiction. Equally, beyond locating all the ‘designer’ domestic violence
remedies in one statute, provision is also made to extend their availability to a
much wider range of applicants. Nonetheless, in a number of important respects,
the new legislation is fairly disappointing. It fails to achieve much
of
what both the
Law Commission4 and members of the Special Public Committee’ recognised
as
laudable objectives. For example, in its attempt to implement
a
more enlightened
approach to the range
of
individuals who may avail themselves of its remedies, the
Act only partially achieves its objective, and then on rather dubious premises.
Equally, the Act provides
for
only two kinds of order when, by moderate
amendment to the Housing Act
1985,
it could have helped to accomplish
a
third,
and much more useful, solution to the problem of domestic violence.
This article discusses four main features of Part
IV
of
the
1996
Act against the
background
of
its general scheme:6 the question of who will be able to obtain the
orders; the injustices created by pockets
of
deficient draftsmanship; the
interrelationship between the Act and existing legislation on the provision
of
*Lecturer
in
Law, University of Manchester.
For
victims of violence everywhere, and one especially.
1
Under s62(3), the Act
will
only come into force on
a
date
(as
yet to
be
specified) appointed by order
of the Lord Chancellor.
2 Lord Irvine of Lairg, HL Deb vol573 col 709, 30 January 1996.
3 The Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and
Magistrates’ Courts Act 1978 and the Matrimonial Homes Act 1983. Lord Scarman described this
regime
as
‘a
hotchpotch of enactments of limited scope passed into law to meet specific situations or
to strengthen the powers of specified courts’:
Richards
v
Richards
[1983] 2 All
ER
807,
818.
4
Law Com
No
207,
Family
Law,
Domestic Violence and Occupation
of
the Family Home
(London:
HMSO, 1992).
5
Proceedings
of
the Special Public Committee,
HL Paper
55
(London: HMSO, 1995) 12-89.
6 Consideration
will
not
be
given to those provisions of the Act which are, after consequential
amendments, scarcely more than re-enactments of certain sections of the Matrimonial Homes Act
1983. The only point worth making here
is
that there has been
a
change
in
terminology from ‘rights
of
occupation’ to ‘matrimonial home rights,’ the latter
term
being central to Part
IV
of the 1996 Act.
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local authority housing for those driven from their home by a violent partner; and
the inadequate nature of, and scope for, potential police involvement under the Act.
General scheme
of
Part
IV
of
the Act
The main objective of Part IV of the
1996
Act was to establish
a
simplified and
fully integrated framework within which relief from domestic violence could
be
sought.’ This was achieved by making its remedies available in all courts that
normally deal with family proceedings.8 The two basic forms of relief for which
the Act provides
are
the occupation order’ and the non-molestation order.” Of
these, the former
is
the more Draconian in that it can
be
invoked to exclude
a
person from their normal dwelling house and indeed
a
defined
area
in which that
house
is
situated. Though magistrates’ courts
are
empowered to make both sorts
of
order, their jurisdiction
is
circumscribed to the extent that no such power exists
where there is a dispute between the parties
as
to occupation rights (unless it
is
unnecessary
to
resolve that dispute
in
order to make the order).’‘ It might
be
objected that, even outside
a
dispute as to occupation rights, magistrates should
never
be
entitled to make such significant orders, This issue was considered by the
Law Commission, which took the view that, though there was a danger involved, it
should nonetheless
be
sacrificed to the greater
good
of promoting ‘the general
objective
of
developing a unified family jurisdiction.’ The Commission,
unfortunately, seems to have given undue weight to the fact that magistrates had
similar powers under the Domestic Proceedings and Magistrates’ Courts Act
1978.13 There, ouster orders could only
be
awarded where there was
a
history of
violence on the part of the respondent
or
where he had already broken a personal
protection order;14 yet the same is not true under the new Act. Furthermore, while
it is true that the
1996
legislation establishes
a
unified jurisdiction, the vast
preponderance of cases are likely to
be
brought in the magistrates’ courts because
of
a
combination of the lesser expense involved there and the increasing
restrictions on the availability of legal aid.
The occupation orders
for
which the Act provides can
be
granted to achieve any
one
or
more
of
seven results.’5 In essence, these seven versions of an occupation
order serve to achieve only two broad functions. First, they can
be
obtained
to
7
8
9
10
11
12
13
14
15
The original draft of the Family Homes and Domestic Violence Bill was prepared by the Law
Commission which identified
as
a central objective that the new legislation should provide ‘a single
consistent set of remedies . . . available in all courts having jurisdiction in family matters’: Law Com
No
207, n 4 above, para 3.1.
In s54(1) of the Act, it is provided that “‘the court” means the High Court, a county court or a
magistrates’ court.’
ss
30, 32, 33, 34 and 35.
s
39.
s
56(1).
Law Com
No
207, n4 above, para 5.4. Another justification is that
s
57( 1) provides an automatic
right to appeal to the High Court against decisions of magistrates to make or refuse any order under
the Act.
Under
s
16(2) of that Act, the power to make an ouster order was available only as against a spouse.
Under the 1996 Act, it is possible for a considerably wider range of applicants to secure this kind of
order.
Domestic Proceedings and Magistrates’ Courts Act 1978,
s
16(3).
It is not always possible for the court to choose from the full menu of seven orders. The various
permutations under the different sections of the 1996 Act are too numerous and technical to
set
out
here in detail. However,
as
a general rule, depending upon the status of the applicant
-
that is,
depending upon whether the applicant is entitled to occupy the premises and upon the nature
of
her
connection with the respondent
-
the court may have a greater or lesser choice from the full menu.
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