The family court has the power to grant protective orders to victims of domestic abuse, including Non-Molestation Orders and Occupation Orders. Such orders are more commonly referred to as "injunctions". More recently Domestic Abuse Protection Orders (DAPOs) are available to the family court in certain pilot areas.
Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs) are a civil recourse currently being piloted across a handful of locations in England and Wales including Greater Manchester. They have been implemented under the Domestic Abuse Act (DAA) 2021 with the intention of replacing all civil protection measures that are currently utilised in response to domestic abuse, encapsulating the strongest elements of these into a “single comprehensive…order”.
Before we can really understand how DAPNs and DAPOs work, we need to be clear about what ‘domestic abuse’ actually means.
What is domestic abuse?
Prior to the DAA 2021, legislation had consistently failed to define ‘domestic abuse’, rendering it a legally ambiguous term. Whilst there have been governmental attempts to publish substantial definitions for the term, these publications have lacked the statutory status required to ensure that such an interpretation is utilised across organisational bodies. The DAA 2021 has sought to eradicate any ambiguity previously associated with ‘domestic abuse’ by positing a broad definition for it within section 1. It is thus proposed that ‘domestic abuse’ consists of ‘abusive behaviour’, directed from one individual to another, both of whom are over the age of 16, and are ‘personally connected’.
Further clarity is provided under the DAA 2021, s 1, whereby the following behaviours are identified as ‘abusive’:
- Physical or sexual abuse
- Violent or threatening behaviour
- Controlling or coercive behaviour
- Economic abuse (i.e., behaviour substantially and adversely effecting one’s ability to acquire, use or maintain money/other property; or obtain goods or services)
- Psychological, emotional or other abuse
The inclusion of “or other abuse” emphasises the non-exhaustive nature of this list, therefore, additional behaviours may still qualify as perpetrating domestic abuse.
Whilst a perpetrator may exhibit such behaviours repeatedly, a singular incident would suffice as meeting the criteria for domestic abuse under this statute. Furthermore, the behaviour need not necessarily be made directly towards the victim, for instance, in circumstances where the victim’s child is the recipient of the perpetrator’s abuse, this would still qualify as domestic abuse against the associated parent.
Section 2 of the DAA 2021 elaborates further upon what is meant by ‘personally connected’, identifying the following relationships as compatible with this term:
- Marriage/civil partnership (past or present)
- An agreement to marriage/civil partnership (past or present)
- An intimate personal relationship (past or present)
- Shared parental responsibility over the same child (past or present)
- A relative
It is thus evident that a broad definition for ‘domestic abuse’ has been posited under the DAA 2021, facilitating for a more nuanced understanding of the term and its ability to materialise within a range of relationship-types.
There has also been an intentional shift in the statutory language, whereby the term ‘domestic abuse’ has been favoured over that of ‘domestic violence’, thus, catering for an intuitively broader understanding of the matter. ‘Domestic abuse’ has stronger connotations with a wider range of behaviours, whilst ‘domestic violence’ is often (incorrectly) restricted to physical harm. The dominant use of the former term prevents a restrictive interpretation prevailing, which is further reinforced by the scope of the statutory definition itself.
Having posited a legal definition for ‘domestic abuse’, the precise components required for a DAPN/DAPO to be made can now be explored. Part III of the DAA 2021 specifically outlines the circumstances which necessitate such measures being implemented.
When can a DAPN/DAPO be enforced?
DAPNs are issued by the police in circumstances where they reasonably believe that an individual has been abusive towards a person to whom they are personally connected, and they have reasonable grounds to believe that a DAPN would be necessary to protect the victim from domestic abuse/a risk of domestic abuse.
A DAPO will be granted by the court where it is satisfied on the balance of probabilities that an individual has been abusive towards someone to whom they are personally connected, and the order is necessary and proportionate to protect the victim from domestic abuse/a risk of domestic abuse.
The DAPN will provide a victim with immediate, short-term protection, whereas the DAPO serves to elongate this. Nevertheless, a DAPO is not dependent upon the police issuing a DAPN, and in circumstances where this is the case, a DAPO will provide long-term protection independently.
Where the police have issued a DAPN, they must subsequently apply to the magistrates’ court for a DAPO. Alternatively, a victim, the Chief Officer of Police, or any other individual with leave of the court may also apply for DAPO without a DAPN having been served. Such applications must be made to the family court, unless the victim who is applying, and their perpetrator, are already parties to family or civil proceedings, in which case, their application should be made to the court where such proceedings are being held. Furthermore, under s 31 of the DAA 2021, a court can issue a DAPO during family, civil or criminal proceedings, without an application having been made.
In addition to the above criteria, a DAPN/DAPO may only be served upon individuals over the of 18, however, the beneficiary of such protection may be as young as 16. During the pilot phase, DAPNs and DAPOs are only available in the regions of Greater Manchester, Croydon, Bromley, Sutton, Cleveland and North Wales. Eligibility for these protective measures thus require the perpetrator to reside in one of these locations, whilst the victim may reside elsewhere. Nevertheless, the abuse need not occur within England and Wales. The availability of such measures seeks to protect the victims of domestic abuse from their perpetrator in a variety of ways.
What protection is afforded by DAPNs/DAPOs?
As implied by the name, Domestic Abuse Protection Notices and Domestic Abuse Protection Orders are intended to protect individuals from domestic abuse.
A DAPN is a police-issued notice, providing immediate support to a victim of domestic abuse upon its issue. DAPNs can impose various restrictions and prohibitions upon a perpetrator of domestic abuse, preventing them from contacting a victim; coming within a specified distance of the victim’s home/other location frequented by the victim in England and Wales; and even regulating the perpetrator’s home rights in instances where the parties live at the same address. Regulating the home rights may prevent a perpetrator from evicting/excluding the victim from their premises, prevent a perpetrator from entering the premises and/or require them to leave the premises. Any of these restrictions/prohibitions may be permitted where necessary to protect the victim from domestic abuse/a risk of domestic abuse.
Such protection under a DAPN lasts for 48 hours, during which time the police must apply to the magistrates’ court for a DAPO, and simultaneously secure a corresponding hearing. To reiterate, however, a DAPO may be ordered by the court in the absence of a DAPN.
Where a DAPO is served, the court is given significant discretion to impose any prohibitions, restrictions and/or positive requirements upon a perpetrator that are deemed necessary and proportionate to protect the victim from domestic abuse/a risk of it. The list of prohibitions and restrictions catered for under a DAPN are also permitted under a DAPO, however, in relation to DAPOs, this list is non-exhaustive. The availability of positive requirements under a DAPO, broadens the protective scope even further, enabling mandatory conditions to be imposed upon a perpetrator. Whilst the DAA 2021 has not specified the positive requirements which may be imposed upon a perpetrator, it has been suggested in associated governmental discussions that programmes addressing substance misuse, mental health and behavioural concerns could be utilised. In addition to the available conditions, Electronic Monitoring (EM) may also be imposed upon a perpetrator to monitor their adherence to any geographical restriction(s)/prohibition(s). Once again, EM may only be imposed in circumstances where it is believed to be both necessary and proportionate to protecting the victim from domestic abuse/a risk of domestic abuse.
How long can a DAPO last?
As aforementioned, the preliminary DAPN only lasts for 48 hours. Where a DAPO has been approved and served by the court, however, it can be granted for either a specified period, e.g., 6 months; until the occurrence of a specified event, e.g., the conclusion of separate proceedings; or until a further order is made. It should be noted, however, that each condition imposed under a DAPO, need not last the same length of time.
Whilst such an order may theoretically be granted for an indefinite period of time, the court must ensure that the duration is both necessary and proportionate to protect the victim from domestic abuse/a risk of it.
What happens if a DAPN/DAPO is breached?
Where the police have reasonable grounds to suspect that the conditions of a DAPN have been breached, an arrest may be made without warrant. The magistrates’ court then has the subsequent power to remand such an individual in custody or on bail, as long as they are brought before the court within 24 hours of the arrest, or at the hearing for a DAPO (if this is within that 24-hour period).
Breaching a DAPO may be punishable as a criminal offence, with a maximum sentence of 5 years imprisonment and/or a fine. Nevertheless, where the matter is not being dealt with by the magistrates’ court, a breach may be pursued as a civil contempt of court. This option recognises that some victims do not wish for their perpetrator to be criminalised. Nevertheless, there will be instances whereby the breach cannot be dealt with as a civil contempt of court due to the severity of the behaviour which constituted the breach. Such matters will be dealt with as a criminal offence, not only to protect the victim, but also to protect other members of the public, where it is in their interest for such repercussions to be imposed.
Final remarks
Whilst a plethora of guidance is available in relation to the use of DAPNs and DAPOs, as with any new legal remedy, there always remains some ambiguities with how it will work in practice. Nevertheless, the statute informing these civil protection measures has sought to validate the experiences of a wide range of victims. We can advise on legal protections available including Non-Molestation Orders, Occupation Orders and Domestic Abuse Protection Orders. Therefore, if you suspect that you may be the victim of domestic abuse, please do not hesitate to contact Stephensons, who have a range of legal professionals specialising in providing advice in such matters, and supporting you in attaining the outcomes which you require. Contact us today on 0161 696 6193.
Blog author: Sam Frank
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