The Legal Response to Domestic Violence

THE LEGAL RESPONSE TO DOMESTIC VIOLENCE

The function of law is primarily a means of ordering society in a fair and just way. This means that law has to react to the changing needs and attitudes of society. In this address I am going to examine the changing attitude of society to domestic violence and how the law has responded.
In the 1930's the film "The Quiet Man" was made. An American who returns to Ireland falls in love with a fiery red-head played by Maureen O'Hara. The film shows the picture of rural life in Ireland and how a real man tamed the woman he loved. Recently I was watching this romantic film and it suddenly struck me how today aspects of that film would be seen as not acceptable. It would be no longer (or should be no longer) acceptable to kick a bedroom door down because your wife had locked it or force march her across fields not even stopping when she lost her shoe. Nor would it be regarded as acceptable for an older woman to come forward and give the character played by John Wayne a stick "to beat the lovely lady with" which he duly did. This film clearly showed that there was a public acceptance that there was nothing wrong with some degree of physical violence to a woman so that she would respect her husband and know who was in charge. The film also promoted the view that the woman really wanted to be submissive and that physical ill-treatment didn't do her any harm. I don't make this point in any way to trivialise the subject but to establish just how far society has developed in relation to its attitudes to violence or humiliation of women.
Domestic violence has always existed. Previously it would have come to light in the Divorce Court as cruelty which could either be physical or mental. Cruelty in a marital relationship had been a ground for Judicial Separation but it did not become a divorce ground until the introduction of the Matrimonial Causes Act in England and Wales in 1937 and the Matrimonial Causes Act in Northern Ireland in 1939. Neither Act gave a definition of cruelty that was developed by the judges through decided cases.

In the case of Horton -v- Horton AER 1940 Vol. 3 page 380 Mr Justice Bucknill defined cruelty as follows:-
"The question for me, therefore, is whether I am satisfied that the wife has committed wilful and unjustifiable acts inflicting pain and misery upon her husband which have caused him bodily hurt or injury to his health, or which have caused him reasonable apprehension of such hurt or injury. Mere conduct which causes injury to health is not enough".
This definition of cruelty was further developed in the 1950's.
In the House of Lords decision in Jamieson -v- Jamieson reported at AER 1952 Vol. 1 page 875. At page 886 Lord Reid defined cruelty on behalf of the Court in the following terms:-
"But there can hardly be a more grave matrimonial offence than to set out on a course of conduct with the deliberate intention of wounding and humiliating the other spouse and making his, or her, life a burden and then to continue in that course of conduct in the knowledge that it is seriously affecting his or her mental and physical health. Such conduct may consist of a number of acts each of which is serious in itself, but it may well be even more effective if it consists of a long continued series of minor acts, not one of which could be regarded as serious if taken in isolation. Once it is established that physical violence is not a necessary ingredient of cruelty - then I can see no justification in principle for requiring that the deliberate acts of the defender must be of a certain character and I know of no authority which requires me to make such a distinction".
This case gives clear authority that physical violence was not an essential ingredient of cruelty. In this case the Law Lords clearly accepted that mental cruelty could stand alone as a divorce ground.
You will note that in this passage Lord Reid specifically refers to the humiliation of the injured spouse.

So the type of behaviour which was seen as capable of amounting to cruelty was expanding.
The early embryo's of today's definitions of Domestic Violence were beginning to take form in Matrimonial Law.
The 1973 Matrimonial Causes Act came into effect in England and Wales. This act established the concept of no fault divorce.
The parties could obtain a divorce on the grounds of two years separation with consent of both parties and five years separation without the consent of the other spouse.
It also changed the ground of cruelty to one of unreasonable behaviour.
The legal definition for unreasonable behaviour was defined by
Mr Justice Dunn in Livingstone-Stallard -v- Livingstone-Stallard 1974 2All ER page 767:-
"Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities".
Mr Justice Dunn made a further important observation which indicated that unreasonable behaviour clearly encompassed what could be described in today's terms as "emotional abuse".
"In my judgement, he patronized her continually and submitted her, as I have found, to continual petty criticisms. His general attitude is well exemplified by the incident of the sherry and the photographer, whom he called "the tradesman". I accept that many of the incidences were, or might appear to be, trivial in themselves and that there is a paucity of specific incidents between September 1970 and November 1972. But taking the facts as I have found them in the round in relation to the husband's character, in my judgement, they amount to a situation in which this young wife was subjected to a constant atmosphere of criticism, disapproval and boorish behaviour on the part of the husband".
The 1978 Matrimonial Causes Act in Northern Ireland substantially followed the earlier English legislation.
What effect did this have on Domestic Violence?
The concept of unreasonable behaviour included financial deprivation.
The imposing of social isolation on one spouse by the other was recognized as unreasonable behaviour and thus the idea of controlling behaviour in close intimate relationships was beginning to be seen as an unacceptable part of family life.
As judicial and legislative oppobruim of physical violence within the family became more apparent some perpetrators began to use more subtle methods of coercion. This, in turn, lead to the necessity of a wider definition of Domestic Violence.
While the 1978 Matrimonial Causes Order enabled more civilized divorce, it meant the Court may not have had a full picture of the cause of the family breakdown and how that might effect the ongoing relationships between the parties in respect of their children.
Article 27 of the 1978 Matrimonial Causes Order dealt with the division of matrimonial property and the need to provide a home for the children of the family. This was clearly a problem in Domestic Violence cases where the woman was forced to leave the matrimonial home for her protection and she took the children with her. While hostel accommodation gave her a safe haven for a period it was not ideal.
The 1980 Domestic Proceedings Order attempted to address this problem by means of an Exclusion Order and a Non-Molestation Order against the violent partner.

The problem with the Exclusion Order was that it only lasted for six months and could only be extended if it could be established that a threat of violence still existed. While the Non-Molestation Order did last for two years it gave a measure of protection but it became clear that the victim of abuse could not risk returning to live in the same house with the abusive partner.
What was required was a right of residency in the home for the victim and the children of the relationship until matters could be finalized between the parties.
The law responded to this problem with The Family Homes and Domestic Violence (Northern Ireland) Order 1998. Article 11 of this Order strengthens the power of the Court to exclude the respondent from the family home.
11(7) states - "If it appears to the Court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the
Respondent, if an Order under this Article containing one or more of the provisions mentioned in paragraph 3 is not made the Court shall make the Order unless it appears to it that:-
(a) the respondent or any relevant child is likely to suffer significant harm if the Order is made.
(b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the Order is not made.
11(10) of this Act enabled the court to give a mother and children a right of residency for a specified period until the occurrence of a specified event or until further order.
The purpose of this legislation was primarily to provide women and children with the means to live in peace in the matrimonial home when domestic violence has occurred until financial and property rights were decided on.

The law also recognized in the Family Homes and Domestic Violence (Northern Ireland) Order the need for the Court to consider the effects on children if domestic violence had occurred.
Article 28 of the Family Homes and Domestic Violence (Northern Ireland) Order also addressed the approach the Court should take in deciding Residency and Contact Orders in respect of children where Domestic Violence had occurred between their parents.
Article 12 of the Children (Northern Ireland) Order 1995 dealt with the question of Residence Orders and parental responsibility.
Article 28 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 stated that an additional Article should be inserted as Article 12A to the Children (Northern Ireland) Order 1995 which
specified that before making a Residency or Contact Order the Court
should specifically take into account:-
"Whether the child has suffered or is at risk of suffering any harm through seeing or hearing ill-treatment of another person by the prohibited person".
A prohibited person is defined in 12A(2) - "A person is a prohibited person for the purposes of paragraph (1) if either he is or the Court considers that he should be prohibited by a Non-Molestation Order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 from molesting another person.
In Northern Ireland the Court is required by statute as well as case law to consider the effect on the children of domestic violence when considering residency or contact. It is more particularly an issue in contact cases.
An equivalent statute requirement is not present in English law.

In 2000 the English Court of Appeal made an important contribution to the understanding of domestic violence issues. Re L 2000 Family Law Reports page 334 is one of four cases heard by the Court of Appeal in England which outlines the principles which should be applied in domestic violence cases when considering whether or not it is appropriate to give direct contact. This was a decision of the Court of Appeal comprising of Dame Elizabeth Butler Sloss, who was the president of the Family Division in England and Lord Justices Thorpe and Waller. The decision in Re L established four important points.
1. The Court's readiness to accept psychiatric evidence on the effects of domestic violence.
2. The need to establish at the earliest opportunity the nature and extent of domestic violence.
All too often issues of domestic violence are not faced at the initial court hearing. A practice should be operated where lawyers enquire in every contact case, even if it hasn't been raised by the parents, if domestic violence has been an issue within the marriage. A realistic approach to the extent of the violence must be taken. An agreed schedule of the domestic violence must be provided to the Court and if a schedule cannot be agreed between the parties the Court should hear and determine the matters in dispute. This has become known as a Re L hearing.
In cases where domestic violence is not an issue a statement should be presented to the Court and signed by both parties indicating that domestic violence did not occur from either party within the marriage in any form. This document should be retained in the Court papers.
The purpose of this is to ensure that the parties are aware of the importance of the issue of raising immediately and that their views may not have the same weight if raised later. Sometimes the victims of domestic violence do not raise it at the initial separation hearing because after the perpetrator realises his or her partner is finally leaving they feel remorse and their behaviour improves. A Contact Order is then made, the Court not having been made aware of any issues of domestic violence.

However, as time goes on the behaviour, if not addressed, can reoccur and evidence of early violence may be difficult to establish in subsequent Court proceedings.
There has been a recent decision of Re A [2006] 1 Fam LR 283 which indicates that attention should be given to whether there is corroboration of the alleged violence, whether police records or medical evidence is available. This decision indicates that allegations of domestic violence should be rigorously examined.
3. The Court expresses a view as to when it is appropriate to go against the wishes of the child, as follows:-
• Indications that there are prospects of the child changing his or her view as a result of preparation work or the contact itself, for example, there is a history of meaningful attachment and good relationship; the non-resident parent has child-centred plans as to how to help the child to overcome his or her resistance; there are some indications of ambivalence such as an adamant statement of not wanting to see that parent accompanied by lots of positive memories and affection when talking about the parent.
4. The Court recognised that domestic violence involves a very serious and significant failure in parenting. Failure to protect emotionally and in some cases the child is subjected to physical abuse. This meets the definition of child abuse. Without the following the balance of advantage of contact is tipped in favour of contact being regarded as a disadvantage to the child:
(a) Some (preferably full) acknowledgement of the violence.
(b) Some acceptance (preferably full) of responsibility for that violence.
[Since 2000 perpetrator programmes have become more common. It is clearly the view of professions offering these programmes that full acceptance of the extent of the violence and responsibility for that violence and its effect are necessary. It is my view that the Courts will now also adopt this approach. Family Law is an instrument which develops and takes account of increased behavioural knowledge].
(c) Full acceptance of the inappropriateness of the violence, particularly in respect of the domestic and parenting context and of the likely ill effects on the child.
(d) A genuine interest in the child's welfare and full commitment to the child, i.e. a wish for contact in which he is not making conditions.
(e) A wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child develop appropriate values and attitudes.
(f) An expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently.
(g) Indications that the parent seeking contact can reliably sustain contact in all senses.
The judiciary and Court Service in Northern Ireland are looking at further initiatives to improve the way we deal with the problems of domestic violence. While a great deal has been done to protect women and children in the Family Court context there are still problems as to how the Courts can play a part in preventing domestic violence from reoccurring. Anger Management courses and Men Overcoming Domestic Violence programmes are available in some parts of Northern Ireland but there is evidence to suggest that, in some cases, they are over subscribed. It has become clear that attendance at these programmes will not prevent domestic violence unless the perpetrators fully accept that what they have done is wrong and do not try to justify their conduct by saying "She drove me to it", "I am not normally a violent person" and "Okay I hit her but she wasn't as badly hurt as she claims and she hit me". While these attitudes still prevail in the perpetrator they have not established a capacity to change their conduct in the long term. Once patterns of inappropriate thinking and conduct have been firmly established in individuals it is extremely difficult to enable them to change.
Therefore surely the best way to tackle domestic violence must be to prevent inappropriate patterns of behaviour from occurring.
It is my own view that this should be started with children and young people at secondary school as part of the Personal and Social Development classes dealing with how people should respect each other and how opposing views can be accommodated in close personal relationships without resorting to inappropriate behaviour which physically hurts, threatens, intimidates, disregards or disrespects the view of the other person.
There are those that believe the Court would be able to deal more effectively with domestic violence if there was a fully integrated Domestic Violence Court dealing with criminal, civil and family matters. Mr Justice Gillen has recently visited New York to see how such a court operates in practice. He will be delivering a paper on Domestic Violence which, no doubt, will deal with the Domestic Violence Court. The creation of such a court in Northern Ireland would have considerable implications to the current court structure. There would be implications for judicial manpower organisation and funding. What would be the involvement of the Lay Magistrates in such a court? At the moment the Lay Magistrates deal only with Children's Order work and Juvenile Justice. Would a Domestic Violence Court have to be tiered depending on the seriousness of the issue. Would there be sufficient work to justify the need for a completely separate Domestic Violence Court? There are also those that argue against having domestic violence dealt with in a specialised court which could potentially mean that domestic violence is not seen as part of the criminal justice system. Many argue that as domestic violence infringes criminal law it therefore should be kept within the ordinary criminal justice system. There is a fear that if criminal cases with a domestic violence background were dealt with in a Domestic Violence Court that there is the potential for the conduct of the perpetrator to be de-criminalised to some degree. Those who take this view argue that domestic violence should be dealt with in the ordinary criminal courts but that greater sentences should be given as a deterrent to others on the basis that the fact that a crime has a domestic violence aspect should be treated by the court as an aggravating feature; the courts, in fact, do take this approach. Those who favour the integrated Domestic Violence Court would argue that as well as punishment measures it would give the court more opportunity to enforce a rehabilitation aspect of sentencing which would ultimately be better for society and give greater protection to women and children. These are some of the issues that domestic violence raises for society in general and the legal system in particular. I hope that this address has given you some insight into how the law has developed, and is developing, to cope with this complex social issue.

N.B.
As was indicated during the question session assault on an adult female of a domestic violence nature does not involve the same actions as apply to sexual offences.
Someone convicted of an assault on an adult female in circumstances of domestic violence is not included as a Schedule 1 offender. Schedule 1 offenders are those who commit direct offences of a sexual or violent nature against children.
It may be useful for you to consider some comments made in a document - Schedule 1 Children & Young Persons Act 1968 - doc: www.everychildmatters.gov.uk.htm
Although dealing with England and Wales the following excerpt from this document will give you some insight into the issues which have to be considered when dealing with the Schedule 1 Offenders List and the potential of adding other categories of offending to the list.
"Guidance on individuals who present a risk to children - review of ‘schedule 1' offences The Children and Young Persons Act 1933 was intended to protect children of school age from cruelty and exposure to moral and physical danger. Schedule 1 of the act set out a list of offences against children and young people to which particular provisions of the act applied.
The term ‘schedule 1 offender' has subsequently come into wide use to describe anyone convicted of an offence against a child. The presence of a ‘schedule 1 offender' within the home environment has normally triggered an assessment of risk by Social Services.
However, a ‘schedule 1' conviction attracts no statutory requirements in relation to child protection issues, and this has led to a lack of clarity about agencies' roles and responsibilities when dealing with such offenders.

Further, there has been no comprehensive list of offences to which the term ‘schedule 1 offender' should apply, leading to different and sometimes conflicting interpretations of subsequent legislation to protect children.
The term ‘schedule 1 offender' is a label that lasts for life with no review procedure. It takes no consideration of the circumstances of the offence, or any assessment of ongoing risk that the individual may pose. For example, a child involved in a playground fight may find themselves subject to scrutiny from Social Services and other agencies for life, irrespective of their likelihood of reoffending against a child, with no opportunity to challenge that scrutiny.
This practice may well be subject to human rights challenges in the future, and the view of the Schedule 1 Review Working Group is that changes to agency procedures must be brought into immediate effect.
The review process is ongoing, and a full summary of the current position is contained in the local authority Social Services letter (LASSL): "Identification of individuals who present a risk to children".
A summary of the actions authorities are required to take is as follows:-
The term ‘schedule 1 offender' is no longer helpful and indeed may become problematic legally. The term ‘risk to children' should therefore be adopted for those persons who have been identified as posing an ongoing risk to a child.
The conclusion that an individual poses a ‘risk to children' should be based on all available information including that provided by relevant agencies, such as assessments of risk made by probation, police, health, whether individually or via the multi-agency public protection arrangements (MAPPA).
The revised list of offences (see the LASSL above) provides a useful update of relevant legislation to protect children. However, it should not be deemed to be exhaustive, or used purely as a ‘trigger' to denote risk. Rather the protection of children at risk of significant harm remains the responsibility of practitioners exercising their professional judgment".