Vardags Family Law Essay competition 2024/25 | Aisha Mukadam

‘DAPOs were an unnecessary modification of the Non-molestation Orders.’ Critically discuss and evaluate whether the court orders, in particular non-molestation orders and DAPOs, available under statute regarding domestic law go far enough to protect victims with reference to case law.

Author: Aisha Mukadam - University of Salford

Domestic abuse – defined under the Domestic Abuse Act (DAA) 2021 as when abusive behaviour (1) is present between two persons who are “personally connected” (2) and are 16 years-old or older (3) – is an issue that has been plaguing society for centuries and recent statutory development has armed victims of abuse with the ability to stand up against their abusers. This development was widely revered as ‘longer overdue’ (4) as in its absence, the courts had the power to decide whether the domestic abuse was present in the cases that were presented before it, which unfortunately led to many incorrect judgements. (5) However, real protection lies with the orders that are available to victims under the Family Law Act 1996 (i.e. the non-molestation orders) and the Domestic Abuse Act 2021 (Domestic Abuse Protections Orders (DAPOS)). The non-molestation orders available under the Family Law Act (FLA) 1996 have worked incredibly in aiding victims to receive the help that they need to get away from their abusers, and despite the introduction of the DAPOs under the Domestic Abuse Act of 2021, there has been no clear shift of victims applying for DAPOs over the non-molestation orders. Nevertheless, this essay intends to discuss and evaluate the court orders, in particular the non-molestation orders and the DAPOs, available for victims of domestic abuse and what more the government can do, if anything, to help victims.

It is undoubtedly true that non-molestation orders are the most favoured court order for victims of abuse and there are many cases that can showcase the effectiveness of those orders making it clear that the DAPOs were unnecessary. From July 2022 to September 2022, 84% of the most requested remedies were non-molestation orders (6) – this was the during the first year that the DAPOs were introduced, reiterating the fact that the DAPO was not needed. The requirements for the non-molestation orders are listed in the Family Law Act 1996 (7) (they must be ‘associated persons’ (8) rather than ‘personally connected’ (9)) and attempt to prohibit the perpetrator from continuing their abusive behaviour towards the victim – the term ‘molesting’ is not defined under statute but can mean behaviour ranging from stalking and persistent messaging to damaging property and harassment/persistent pestering. There are many cases in which these orders have proven that they protect victims well, even when the perpetrator does not comply with them, for example, in the case of Vaughn v Vaughn (10), the victim was being followed to work and back home every day by the abuser. The abuser did violate the order and was charged with contempt of court, but in doing so he incriminated himself and was sentence to 30 months in prison. Similarly, in the case of Horner v Horner (11), the victim’s ex-husband would use nuisance phone calls to yell obscenities at her and her boss at the school she worked at. He placed posters of her around the school with the caption ‘adulterer’, handed her letters of threats and had a past of physically assaulting her. The Court of Appeal allowed an injunction to be made to prohibit him from ‘interfering with’ the victim (at first instance, the judge had believed that she had enough protection under the Divorce and Matrimonial Proceedings Act 1976). Lord Dunn emphasised that in the aforementioned case that refer to non-molestation orders as “…the form of order which has been used for years in the divorce courts” (12) which highlights that the non-molestation order is working well to protect victims of domestic abuse and that DAPOs were not a necessary addition to the civil injunctions available. It should be noted that civil court orders like non-molestation order are monumental in giving the protection that the victim needs without them having to criminalise someone that they once cared for if they feel that they do not have the strength to go through with the criminal court process, reducing the chances of them being ‘infantilised’ (13) victims (this term was used by Herring as he expressed the importance of not taking what little autonomy victims have after the abuse that they have suffered (14)). Therefore, non-molestation orders are accessible to most people who need it, indicating that the DAPO was not needed.

However, while the victim’s protection is the priority, oftentimes, the abuser cannot be faulted for their behaviour, and so no order/injunction will be issued as it will do nothing to protect the victim. In Banks v Banks (15), where the abuser was suffering from dementia and bipolar making her physically violent towards her husband. Any order that was to be issued against her would not have any substantial effect as she did not have the mental capacity to understand what she was doing was wrong or to even understand what was being issued against her. This is a gap in the non-molestation order which needs be addressed and could be done so by a new form of aid for victims who are simply in an unfortunate situation – however, there is not much civil courts can do to help victims in such situations as the illness or disorder the abuser is facing would most likely continue to get worse (this excludes those with anger issues and/or other disorders that can be treated). Moreover, perhaps if the abuser had simply had only bipolar disorder, the courts could have issued an order for her take the required medicine to reduce her violent outbursts towards her husband. However, this comes with a litany of contradictions such as the autonomy of an individual to seek medical help, and the fact that the DAPO could produce such an order as specified under the DAA 2021 (16)– the non-molestation orders do only prohibit the undesired behaviour of the abuser, the DAPO could perhaps encourage them to behave better or seek help for their abusive, narcissistic tendencies. Nevertheless, it must be noted that this appears to be the one of the only differences between the DAPO and the non-molestation order, suggesting the changes that were brought in by the DAA 2021 (17) should have been mere amendments of the FLA 1996 (18), saving much time and energy. Furthermore, it also must be acknowledged that victims did not have issues with the orders themselves, rather the ability to obtain was obstructed by the ambiguity associated with the definition of domestic abuse – this lack of consistency in the courts being able to define domestic abuse led to many ill-made judgements declaring that a victim was not in an abusive relationship when the evidence given was glaringly obvious that they were. For example, in 2021, the Court of Appeal revised cases regarding domestic abuse, finding that many judges at first instance had incorrectly decided that there were no abusive relationships. (19) One of the cases was Re T (20), where rape was said to have occurred (the evidence was unavailable, and both parties had inconsistencies in their testimonies) as well as threats of death that were later physically attempted in front of the victim’s infant daughter were not deemed to be abusive by the judge at first instance, who claimed it was a “mutually abusive relationship” that had a “bitter end” which both parties found difficult to deal with (21) – this was ruled against in the court of appeal in the revision of cases in Re H-N & Others (22). These cases highlighted the need for a definition of domestic abuse, not the introduction of a new court order which did not remove the obstruction of receiving an order. This was resolved by the DAA 2021 (23) providing the definition of domestic abuse and removing the leniency the courts had to interpret the meaning for themselves.

In conclusion, the DAPO was not a necessary modification of the non-molestation order, which has been working efficiently for the victims of domestic abuse as evidenced by statistics – there was an annual increase of 3% between the year beginning in March 2022 and ending in March 2023 (24). The Domestic Abuse Act 2021 has introduced many key developments in domestic abuse law, but many of them could have been simple amendments of the Family Law Act 1996, rather introducing a new act – Reece-Greenhalgh emphasises the danger of this, stating that expanding domestic abuse law so much that it results in contradictory law, creating confusion and inconsistency (25). The government can only do so much in terms of introducing laws to protect victims, but this is pointless without the victims being able to access the protection available – the court orders are available, and the main obstruction has been removed, now it is up to the victims to reach out for help. The alternate route would be to take the situation out of their hands, which is not advisable due to the magnanimous possibility of them being infantilised (26) – this must be avoided at all costs.

Footnotes

(1) Domestic Abuse Act 2021 s.1(2)(b)

(2) Domestic Abuse Act 2021 s.1(2)(a)

(3) ibid

(4) Jenny Duggan,‘Domestic Abuse Act 2021 – long overdue’ (2021) 171 NLJ 9

(5) Re H-N & Others [2021] EWCA Civ 448

(6) Ministry of Justice, ‘Family Court Statistics: April to June 2022’, (gov.co.uk, 12th October 2022) accessed 31st January 2025

(7) s. 42

(8) Family Law Act 1996 s. 42(1)(a)

(9) Domestic Abuse Act 2021 s. 1(2)(a)

(10) Vaughn v Vaughn [1973] 1 WLR 1159

(11) Horner v Horner [1982] 2 WLR 914

(12) ibid

(13) Herring J, Family Law: A Very Short Introduction (1st edn, OUP 2014)

(14) ibid

(15) B v B (Occupation Order: Mental Health) [1998] 12 WLUK 177

(16) Domestic Abuse Act 2021 s. 27(1)(b)

(17) Domestic Abuse Act

(18) Family Law Act 1996

(19) (n) 5

(20) Re T [2021] EWCA Civ 448

(21) ibid

(22) (n) 5

(23) Domestic Abuse Act 2021 s. 1

(24) Office for National Statistics, ‘Domestic abuse and the criminal justice system, England and Wales: November 2023’ < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticabuseandth ecriminaljusticesystemenglandandwales/november2023/pdf > accessed 31st January 2025

(25) Danielle Reece-Greenhalgh, ‘Domestic abuse: casing a wider net’ [2022] NLJ 10

(26) (n) 13

Bibliography

Table of Statutes:

Divorce and Matrimonial Proceedings Act 1976

Domestic Abuse Act 2021

Family Law Act 21996

Table of Cases:

B v B (Occupation Order: Mental Health) [1998] 12 WLUK 177

Horner v Horner [1982] 2 WLR 914

Re H-N & Others [2021] EWCA Civ 448

Re T [2021] EWCA Civ 448

Vaughn v Vaughn [1973] 1 WLR 1159

Books:

Herring J, Family Law: A Very Short Introduction (1st edn, OUP 2014)

Journal Articles:

Reece-Greenhalgh D, ‘Domestic abuse: casing a wider net’ [2022] NLJ 10

Duggan J, ‘Domestic Abuse Act 2021 – long overdue’ (2021) 171 NLJ 9

Websites:

Office for National Statistics, ‘Domestic abuse and the criminal justice system, England and Wales: November 2023’ < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticab useandthecriminaljusticesystemenglandandwales/november2023/pdf > accessed 31st January 2025

Ministry of Justice, ‘Family Court Statistics: April to June 2022’, (gov.co.uk, 12th October 2022) accessed 31st January 2025