Family Law Injunctions – Enforcement and Police Powers

Hello. Welcome, everybody money stuff to my mood. And I'm very pleased to welcome you through data law today. This 20 minute by Tsai session called Family Law injunctions dealing with enforcement on police powers. So with this bites I session over the next 20 minutes, when I'm going to be doing is going through these aims with you. First, it and we'll be looking at the position with the enforcement off personal protection injunctions with particular regard to the steps the police can take in these circumstances on Also, be looking at somebody proposals insofar, City draft domestic abuse bill is concerned and how really that applies and how things were changed with that in mind. So really, To understand this, we need to first off almost look at the current legislation. See what the position is with enforcement on who could apply for what waters and what the position is with enforcement. So let's start with the Family Law Act in 1996. Part for the Family Law Act of 1996 covers normal station orders and occupation orders. Normal estacion orders you'll be familiar with are those whereby these will be used to prohibit violence threatening behaviour. Another forms of molestation, which could be conduct fu, for example, Social Media's through text messaging and emailing on another forms of media. And then you got occupation orders, which are used, of course, to regulate at the family home in terms of regulating who lives in the home who does not. Also, sometimes having a geographical perimeter around the property is where which people can or cannot enter in the circumstances. So those are the two orders, and you'll be familiar that insofar familiar with the fact, insofar as these are concerned, one can apply for these have taken within the definition off associated persons, and those are contained within Section 62 63 off the family worked off 1996. We've got the various definitions off associated persons, and first and foremost, it's going to be, for example, Sparse E's former spouse sees cavities former cohabited, several partners from a car. But it's over partners people in a situation where they are in an intimate person relationship of significant duration, for example, Now, when it comes to enforcement of both of these orders than looking firstly, Abdi position enforcement off occupation orders what we need to be familiar with is the use off Section 47 of the Family Law Act in 1996. Now that's where Section 47 allows the court to attach a power off arrest to an occupation Order in circumstances would, of course, satisfies that the respondent has used or threatened actual violence towards the applicant or development. Child under court feels that power of arrest must be attached indoor circumstances if the application is made on notice, unless they are satisfied that it would not be necessary in the circumstances. If the application is made without noticed on, the court has a discretion to attach the power off arrest If there's been violence or threats of violence, unless again, they feel that the person will be adequately protected. The benefit, of course, of having a power of arrest attached to the occupation orders it would enable the police don't arrest without a need for warrant in circumstances where they reasonably suspect that the person concerned has breached the terms of the order. Now your neighbors, the police to arrest and then to either being prenup ceilings after so I wish, or to enable that person to be brought that certainly 30 family court with a retardant, enabling committal proceedings to be sought by the applicant variety. Contempt of Court Act 1981. And if a power off arrest is exercised in these circumstances, and the respondent wouldn't need to be brought to the court within 24 hours, beginning formally time off the arrest. If there is no power of arrest in all circumstances to enforce by over civil route one would need to apply for a warrant for that person to be arrested in the first instance, and then, once they arrested, they would then be brought before the family court to then enable any committed application to be lodged thereafter. On if the person that is brought to court falling guys of being arrested following a power over has been attached, or if a warrant was issued for them to be arrested than a court, the court with and deal with any committed application, which may mean that can deal with it there and then if the person has been given adequate notice order may adjourn the application to enable service to be effective until they were that person. Take independent advice and to be represented. The court may remind a person in custody or reminding on bail on that maybe on police bail indoor circumstances that could be reminded in custody for up to eight days at a time. Various penalties, of course. Upon any committed application, a court may impose a fine. The court may make immediate across story a center to make make a suspended custodial sentence, depending upon the particular circumstances. Doesn't, of course, criminal sanctions as well. And this is particularly relevant in relation to normal estacion orders, so that you've got the amended Section 42 Capital A off the Family Law Act in 1996 which came into effect back in July 2007. On effect of this is that if a person is found to have had without reasonable cause, done anything which they're prohibited from doing so by the terms of anomalous station order than they will be guilty, often offense and a case of a normal gestational. The pursuit section 45 subsection one was the person is aware of the terms of the order if they didn't carry out any act where bite is in breach of the terms of the normalised age in order and l guilty off this offense for which they could then be penalized by way of being prosecuted of foot forties offense on on summary conviction that could be fined UN imprisoned for 12 months and on indictment. And it could be imprisoned for a maximum period off five years. Also, Section 10 of the Domestic Violence Kinds of Victims Act 2004 makes a common assault, an arrestable offence and therefore removes the powers of the off the vest phenomena Station ordered Bunny Steady does retain it and for occupational deserve. Just mentioned Casey can see that section fortune to way, which then allows the process off criminal proceedings being brought out for a breach of anomalous station or do in those circumstances. Now, as I mentioned if, say, somebody is arrested and brought therefore before the family court to enable any committal application to be lodged to endorse circumstances, Azaz I mentioned the court has various options available to them, for example, that could make an immediate decision. Then they can adjourn for a period of time that could remember remind a person in custody taken remanded on bail with conditions, indoor circumstances. The maximum penalty for contempt of court is two years imprisonment. De may suspend on certain terms. They cannot commit somebody to prison for breach of these orders if they are under 18. That may find a person that may make a fresh injunction, for example, on the May touch a power of arrest to any occupation order in the circumstances that his number options available in RD circumstances. Now, let's say one is applying, then for committal by way off, seeking an order for the person and to be sentence by the contempt of court route. And this is where Part 37 of the family procedures of 2010 comes into play. This came into effect in April 2014 by way of an amendment to the family. Procedures on Part fit seven and applies in circumstances where there is an application to commit a person to prison for breach of an order in family proceedings on disease. To shed your family person is a Man Maru's, which relates to particularly contempt off court applications. Now, when it comes to making on application, committal, then in particular rule 37.10 of the family procedures provides that committed application would need to be made by way of an application notice using Apart 18 procedure. Onda committal applications would be made in relation to suspected breaches of orders on also suspected breaches of UN tales which may have been given to the court in these circumstances. Now the application aeltus which needs to comply, depart 18 procedure must set out of a four in numerical format the grounds upon which the application has been made. So it must set out separately and numerically each alleged act off alleged contempt. And if you, on a date of the alleged act and support by modern war, sworn statements of evidence and therefore an affidavit containing all the evidence relied upon now when it comes to service subject to court, dispensing with service or making order for alternative service, the application orders and the evidence of support must be personally served upon the respondent in all circumstances. A za general at the hearing will be heard in public and therefore in open court, as we used to call it, unless the court feels that it's appropriate in the circumstances to have the matter heard in private. Now as I mentioned if there is any application for committal, family court and immediate custodial sentences, not the immediate on automatic remedy, this case of hell and tan, if example to case this case of 2000 emphasizes by the Court of Pill that the length of set prison sentence, if imposed, has to be really commensurate with the level off breach under circumstances related to the breach. So imprisonment is not to be regarded as the automatic response to breach of an order, although there's no principle that, of course, imprisonment will not be imposed on the first occasion. If it has felt on, it's necessary in the circumstances on a number of other matters. Of course, of course. Do, For example, it could impose a five for example, on that they can make a suspended sentence if necessary. For example, on often you find out, the seriousness of the contempt has been judged not only in terms of the gravity but also in terms of what the court is trying to achieve in the circumstances and suspension, therefore, by whether suspended sentences possible in these circumstances, which may well be appropriate now, one of the other things to bear in mind is in terms of enforcement. Generally here, we're looking at a part for the family low after 19.6. But if orders were being made underside of protection from harassment after 1990 sandwich would be relevant from non associative persons that enforcement would be different. So just to put this into context. So you've got a case whereby, say, somebody who has been stalking another person has been being convicted. It was rather has been partly is being prosecuted, Let's say, from a through the protection from harassment Act, either maybe for an offensive harassment of causing fear of violence or maybe stalking or causing alarm or distress. Three. Stalking Let's say they are but have been charged, and now they are being prosecuted for various offenses under the Protection from Harassment Act. The effect of Section five, a off D at 99 7 act, which came into effect on the 30th of September 2009 is that even if somebody is acquitted of any of these offenses under the protection from Harassment Act, then this still permits the court now to attach and make a restraining order to restrain them from carrying out any form off activities acts towards the other person concerns even if they are acquitted of offenses, there is told a possibility off restraining orders being attached in appropriate circumstances. Again, it's very important to to bear that in mind now staying with other methods of enforcement. We also need to be familiar with the domestic funds Protection orders, which came into effect as a result of the Crime and Security Act of 2010 on this allows the police than to provide protection for victim in the immediate aftermath of a domestic violence incident under perpetrator can be prevented from returning to a residence or from having contact with a victim for 28 days. This softness proceeded with a domestic funds protection notice, which allows the person to be required to move out of the home and not have contact. Victim appeared often up to 48 hours and then the police were done, if necessary. Apply for domestic violence protection order at the local Magistrates called, which would enable disorder to be made between 14 and 28 days on this convert alongside criminal proceedings. Eso you've got section 24 to crime and security after 2010 which covers the power to issue a domestic funds protection notice on Section 26 of this act, deals with the breach of a domestic ones protection notice. Section 27 off this Act I e d Crime and Security Act of 2010 covers the application of domestic funds. Protection order on this would be applied for the local Magistrates Court on it must be heard, but a Magistrates court no later than 48 hours after the notice was served on a notice of the hearing must remember given to the person concerned on that Section 28 of the crime and Security after 2010 sets out conditions for the contents of a domestic funds protection order in that it will only be made if the court is satisfied that on a balance of probabilities, the person has been violent towards or has threatened funds towards an associate person. And secondly, the court thinks that their domestic fund protection order is necessary to protect that person for violence or threats of funds. Indoor circumstances as a mention disorder, if it is made, will last between 14 and 28 days, depending upon the particular circumstance and section 29 of the act deals specifically with breach off the domestic violence protection order. Indy circumstances. Now this is where by there's also other forms off protection as well. For example, there's the controlling recursive behavior in an intimate family relationship, which is covered by Section 76 of the Series Crimes Act of 2015 On. This is where by discord would be used them to seek convictions in circumstances where there has been conduct in the form of controlling a coercive behavior on part of a peace or continuous pattern in the circumstances. Now, this is where there is the draft domestic abuse bill of January 2019 with some of you may have had site off, and this is going to be bringing about some changes, particularly when it comes to the position with enforcement off person protection orders. So this is the transformed for transforming the response to domestic abuse, the consultation response and also a draft bill which became available by the government in January of this year. On the the aim is to introduce through this bill on new Domestic Abuse Protection Notice, which will replace the Domestic Violence Protection Aeltus and also to bring in a new domestic abuse protection order which will replace the domestic violence protection order. Thes new orders. I will have the effect off having electronic monitoring facilities available to them as well, and the aim is also to enable victims, the police and also third parties to apply for the domestic abuse protection orders. ONDA members of the family may be able to apply in these circumstances on door. Also, these applications may not be limited to just being applied for at the local Magistrates court. It may well be that these can also not be applied for the family court as well in these circumstances, alongside criminal or family for seniors or instead off, so you can see some of the issues there. This legislation also wants to bring in positive requirements on perpetrators so as to require them to subject to undertake domestic violence. Perpetrated work, for example, on with the enforcement side, insofar as the domestic abuse protection order, the concerned there's going to be a need to have favorites requirements attached them, such as dimension Elektronik monitoring but also, for example, license requirements size to require that person to notify the police if they change the name, for example, or if to change their address and also keep their address details up to date on. Also to impose additional reporting requirements, such as details of any new relationships they're in any applications are making to go overseas. Indoor circumstances on the draft bill also provides that breach of the domestic abuse protection order Willimantic Riml offense subject to a penalty of five years imprisonment. Andan unlimited fine or both in North Circumstances, so that will be possible. And a second stances. He can see the thinking behind us, and the bill does therefore provide for the fact that if and when these are implemented, then they will be the repeal off the provision about domestic violence, protection notices and orders as well. So those will be repealed and replaced by the new domestic abuse protection. All Susan domestic abuse protection orders. Now this is where some of the other aspects with this bill off example. D Domestic violence disclosure seemed a DVDs scheme commonly referred to as Clare's law that will, of course, continue clears Lloyd. Many of you will know came in as a result of the tragic incidents surrounding clay wood who was suddenly murdered by her then partner, George Appleton, who she met on Facebook. And despite her going to the police and wanting information as to his background that that information was not forthcoming and suddenly she stayed with him and he killed her. And this is where they're after. There was a pilot pushed by the then Home Secretary Theresa May for DVDs came to enable people to contact the police and have limited information in certain situations given to them to enable them to decide whether or not they wish to stay with the person they're with to help them to decide really their future. And this was rolled out as of March 2014. Trusting wells. Will this draft domestic abuse bill when she's to ensure that the DVDs came? Not only will it remain, but it will also not be put on a statutory footing. Source didn't invite the police to exercise more discretion in being able at release sufficient information to leave victim indoor circumstances to enable them to make really decisions for themselves. Us as to the future that there's also then D position with cross examination, and that's the other big difference with this bill in the sense that at the moment if, for example, you involved in a private Children or case. And let's say the mother who alleges domestic abuse is preventing the father from scene to Children. So he lodges an application for child arrangements Order specifying spending time with the otherwise having contact on matters listed for finding of fact hearing, then no circumstances if the mother has the benefit of public funding to therefore have the benefit of a lawyer. But the father is not eligible for public funding and is a litigant in person, not present. It is very difficult for him to be given the opportunity to be able to cross examine the mother in those circumstances if it is facility into person, and in many cases it may not be able to be able to cross examine those circumstances. This is where you got the case of PS against BP. This 2018 high court case, handed done by Mr Justice Hayden, which emphasized how important it is to give really regard to whether or not the litigant in person in all circumstances should or should not be up to cross examine the alleged victim what this bill is going to do. It is going to bring in new provisions so that in certain situations, alleged perpetrator will not be able to cross examine the alleged victim in certain situations. For example, after being convicted or cautioned of a specified offense, if there is a unnoticed protective injunction granted against them. And also if the court is satisfied that by allowing them to cross examine the alleged victim, it will allow it will required lead to significant distress of the victim or the quality of the evidence will be diminished and in all circumstances, the court will in fact allow Thea situation whereby the alleged perpetrator, our circumstances, will be entitled now to have the benefit of an advocate and therefore legal representation to be able to put the questions to the alleged victim in cross examination. So that is one of the key aspects there on one other aspect, really, just looking at this is that also be a provisional relation of conditional cautions. So with a view to disposing of matters in a way where there is more out of court disposals, there will be a provision whereby the police will be have to do with lower risk. Offending in a proportionate manner on one is by way of having a conditional caution which effectively would require the offender to comply with certain conditions which are going to be more punitive in certain situations and honestly felt comply will lay face prosecution for the offence. And again, this is therefore a way that is going to be utilized to also deal with enforcement in these types of situations and can see a number of initiatives sign the pipeline, which may well assist in the ongoing issue. So any domestic abuse hope has been a useful session for you cannot thank you as always for this thing. And I speak to you next time. Thank you very much. Bye for now.