Home truth

The proposals to ban violent partners from their homes to give the victim breathing space to consider their options was first suggested in the autumn of 2009. The then home secretary, Alan Johnson, announced plans to allow police to initiate a domestic violence protection order, to be known as a 'go' order, which would see perpetrators banned from their garden gates for up to a fortnight.

This initial idea has now been embraced by the new coalition government and followed up by the new home secretary, Theresa May, on 25 November 2010, when she said that 'tackling violence against women in all its forms is a priority for me and for this government'.

These proposals will be trialled from this summer for one year in three police force areas: Greater Manchester, Wiltshire and West Mercia.

The new powers will allow the police to prevent the alleged abuser from having contact with the victim or from returning to the victim's home. Police will have the power to put an initial notice in place for 48 hours until a court can rule on a longer period '“ usually 14 to 28 days.

This type of initiative, according to the Home Office, exists elsewhere. The Home Office comments that 'variations of the powers have been implemented in other countries such as Austria' whose approach has been 'adopted as best practice legislation by the Council of Europe'. According to the Home Office, studies in Austria have shown that the powers are widely used and the breach rate is very low at three per cent.

Aside from the criminal law, currently the civil law is found within part IV of the Family Law Act 1996 (FLA) and the Protection from Harassment Act 1997. In part IV of the FLA victims can apply for a non-molestation and/or an occupation order, but either order is dependent upon the applicant being an 'associated person' of the defendant.

So married couples, civil partners, cohabitees and individuals who have had an intimate personal relationship which was of a significant duration (section 62) will all be covered and, providing they can show to the court 'the need to secure the health, safety and well being of the applicant and of any relevant child' (section 42(5)) then a non-molestation order will be granted, ex parte if necessary.

To remove someone from their home by way of an occupation order does have more hurdles to overcome but in essence the right to protection is there and indeed enforceable. In fact, breaching a non-molestation order following the amendment of the FLA by the Domestic Violence Crime and Victims Act 2004 is now an arrestable offence (section 42A of the FLA/section 24(1) of PACE).

Immediate action

There is no shortage of protection for a victim but it seems that the main advantage of these new proposals is the use of police judgment in achieving an immediate remedy. Under the FLA, in the cases of a non-molestation order particularly, an ex parte order can be achieved urgently by the victim, but using a 'go' order the victim can be protected immediately by the police if they, following an arrest, are concerned about the risk that the victim may be under irrespective of whether or not they can bring a criminal charge.

This is different to what is currently available where the victim can only receive immediate protection if the police arrest and charge a perpetrator and set appropriate bail conditions or the victim seeks a civil injunction. If the police adjudge a risk then their early intervention is seen as a crucial factor in the work of tackling domestic violence, a problem seen not just in this country but globally.

This process will certainly lower the bar and alleviate the victim from the very real stress of worrying whether or not to take action in the first place and risk further retribution, finding a solicitor and then finding a judge to hear it.

Training of the police therefore will be absolutely vital here for this to have any effect and for this pilot project not to 'wither on the vine'. The coalition government appears to take the issue very seriously; in terms of financial support, over £7m over the last two years we are told has been spent supporting over 700 independent domestic violence advisers (IDVAs) and over 200 local areas have multi-agency risk assessment conferences (MARACs) which support the victims at the highest risk. Perhaps then, like Austria, we shall see the same results.

Multiple meanings

But will these new proposals be affected by a recent case in the Supreme Court? In Yemshaw v Houslow LBC [2011] UKSC 3, the definition of 'violence' was discussed.

The appellant (Y) appealed against a decision that the respondent local authority (HLBC) had been entitled to find that she was not homeless. She had applied for housing assistance because she was scared her husband would physically assault her even though he hadn't yet.

Using section 177(1) of the Housing Act 1996, she argued that HLBC was obliged to rehouse a person where continuing to occupy existing accommodation would lead to domestic violence.

The court at first instance and the Court of Appeal had followed the decision in Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404 (now overruled) and concluded that the term 'violence' required some sort of physical contact. Y had allegedly only experienced being shouted at by her husband, who failed to treat her like a human and had also not been very forthcoming with finance to support the family.

The Supreme Court decided the word 'violence' was not a term of art; it was 'capable of bearing several meanings' and applied to many different types of behaviour which could change and develop over time, and did not necessarily mean 'physical' violence.

The judgment went on to say that the purpose of legislation (in this case the Housing Act) would be achieved if the term 'domestic violence' was interpreted in the same sense as used in Practice Direction (Fam Div: Residence and Contact Orders: Domestic Violence and Harm) (No 2) [2009] 1 WLR 251.

Tough call

So, should this definition be spread further and to the Family Law Act 1996 '“ in particular where there is currently no actual definition of 'domestic violence' and in assessing whether or not to issue a 'go' order?

If the meaning of 'violence' is to be 'capable of bearing several meanings' this will prove to be a hard judgement call for the police in exercising their powers under these new proposals, and the ramifications of this decision in the making of occupation orders could be very serious; but perhaps where the effect of this decision will be more keenly felt will be in the area of local authority housing costs, especially in an era of 'cuts'.

In any relationship there will be different levels of behaviour, some of which can be unpleasant, and levels of unhappiness. At what stage do we wish the state to offer victims another home at public expense? Is this decision going too far?