‘Should I Stay or Should I Go Now? If I Go There will be Trouble and if I Stay it will be Double’: An Examination into the Present and Future of Protective Orders Regulating the Family Home in England and Wales
| Date | 01 June 2022 |
| Author | Kayliegh Richardson,Ana Speed |
| Published date | 01 June 2022 |
| DOI | 10.1177/00220183211073639 |
| Subject Matter | Comment |
‘Should I Stay or Should I Go Now?
If I Go There will be Trouble
and if I Stay it will be Double’:
An Examination into the Present and
Future of Protective Orders
Regulating the Family Home
in England and Wales
Ana Speed
Northumbria University, Newcastle upon Tyne, UK
Kayliegh Richardson
Northumbria University, Newcastle upon Tyne, UK
Abstract
Occupation orders are the dedicated legal remedy through which victims of domestic abuse can
be supported to remain in the family home following a relationship breakdown. Case law indi-
cates, however, that victims experience barriers to securing orders due to the high threshold
criteria and because concerns about protecting the rights of perpetrators has led to judicial
reluctance to grant extensive protection to victims. The options for providing protection to vic-
timsofabuseinrespectofthefamilyhomeareshortlysettobereformedbytheDomestic
Abuse Act 2021, which creates a new Domestic Abuse Protection Order (DAPO). It is antici-
pated that DAPOs will be easier to secure because they will have a lower threshold criteria,
they will be available in family, civil and criminal proceedings, and both victims and third parties
will be able to make an application thereby alleviating the burden on victims who feel unable to
take any action. Whilst there is no intention at this point to repeal occupation orders, the
Home Office has acknowledged that ‘DAPOs will become the ‘go to’protective order in
cases of domestic abuse’suggesting that occupation orders will be replaced by DAPOs in
most cases.
Bydrawingondataobtainedfromananalysisofcourt statistics, a questionnaire of legal prac-
titioners and domestic abuse specialists, and in-depth interviews with victims of domestic abuse,
this paper offers original empirical insights into where the current law fails victims of domestic
abuse. The analysis reveals three key barriers to securing occupation orders. Firstly, despite the
Corresponding author:
Ana Speed, Senior Lecturer, Northumbria University, Newcastle upon Tyne, NE7 7YT, UK.
E-mail: ana.speed@northumbria.ac.uk.
Comment
The Journal of Criminal Law
2022, Vol. 86(3) 179–205
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183211073639
journals.sagepub.com/home/clj
Legal Aid, Sentencing and Punishment of Offenders Act 2012 making efforts to preserve
legal aid for victims of domestic abuse, the means test is difficult for victims to satisfy,
resulting in increases both to the number of victims taking no action to pursue protection
and who act as litigants in person in occupation order proceedings. Secondly, the pro-
spects of a victim securing protection can be adversely affected by their unrepresented sta-
tus. Thirdly, despite case law indicating a less restrictive approach to granting occupation
orders, many victims continue to struggle to satisfy the strict threshold criteria. Some
judges are seemingly willing to bypass this by granting alternative remedies which may
offer victims a weaker form of protection in respect of the family home. Where orders
are granted, the data suggest this is on restricted terms and for limited durations which
reduce their effectiveness a t preventing post-separation abuse and supporting victims to
regulate their short and longer-term housing situation. These empirical findings are then
forthcoming DAPOs are likely to offer a more accessible and effective form of protection
than occupation orders. The analysis suggests that by increasing the scope of applicants, the
breadth and flexibility of available protection and the sanctions for breach, DAPOs have the
potential to remedy many of the existing barriers to securing protection over the family
home. As is always the case with new legislation however, the key will be in its implementa-
tion, to ensure that existing issues are not simply transferred across to the new regime. The
findings are novel because academic commentaries on protective injunctions typically focus on
‘personal protection’offered by non-molestation orders, domestic violence protection orders,
and restraining orders, meaning that both occupation orders and protection for victims in
respect of the family home are under-researched areas of domestic abuse.
Keywords
Occupation orders, Domestic Abuse Protection Orders, Domestic Abuse Act 2021
Introduction
Remaining in the family home following the breakdown of an abusive relationship is a priority for many
victims
1
which promotes positive longer-term outcomes for their safety, economic security and social
support networks and causes less disruption to children of the family.
2
In contrast, victims who are
required to secure short-term accommodation typically experience higher levels of housing instability
3
,
unsuitable conditions
4
and, for those turning to privately rented accommodation, increased housing
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Effective “Safe at Home”Programs that Enhance Safety and Prevent Homelessness for Women and their Children who have
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30 August 2021.
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Housing Instability and Poor Health Among Low-income Women Experiencing Intimate Partner Violence (IPV): Toward a
Conceptual Framework’(2016) 56(2) Women & Health 208–225.
4. R Morley, ‘Domestic Violence and Housing’in J. Hanmer and C. Itzin (eds), Home Truths about Domestic Violence (Routledge,
London 2000); B Aguirre, ‘Why Do they Return? Abused Wives in Shelters’(1985) 30(4), Journal of Social Work 350–354; P
Horn, ‘Beating Back the Revolution: Domestic Violence’s Economic Toll on Women’(1992) 182 Dollars & Sense 12–22.
180 The Journal of Criminal Law 86(3)
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