Domestic abuse orders: worth the paper they’re written on?

The BBC recently reported on Police failings to enforce court orders to protect victims of domestic abuse.“Court orders to protect domestic violence victims from their attackers are "not worth the paper they're written on", the BBC has been told.”

A wide range of orders can be used in domestic abuse situations.  

The protection offered by these different orders varies vastly: including in the time taken for an order to take effect; the application process; the duration of protection; the financial cost to the victim and the consequences of breach. This means the law can be difficult to understand for those suffering from abuse, who may lack the knowledge, understanding and/or resources to seek protection.

Broadly speaking, Criminal Courts offer the following protection:

• Domestic violence protection notices (DVPN): can be issued by the Police to provide emergency protection in the immediate aftermath of a domestic abuse incident.  Then, within 48 hours:
• Domestic violence protection orders (DVPO): must be considered by the Magistrates’ Court to offer protection for a period of 28 days.
• Bail conditions: can provide protection pre-charge and if/when an offender is charged with a criminal offence.
• Restraining orders: can be granted on conviction or acquittal.

Family Courts offer two main injunctions to protect domestic abuse victims:

• Non-molestation orders: protect the victim (and relevant children) from “molestation” – which can include violence, harassment and threats.
• Occupation orders: allow courts to decide who should and should not occupy a home – and can force the offender to leave.

Terms of all these orders tend to include restrictions preventing offenders from using or threatening violence against victims, contacting certain people (such as victims or their families) or from entering or getting too close to certain places (such as victims’ homes or workplaces).

Offenders can be arrested for breach of a DVPN or DVPO – but it is a civil (rather than criminal) offence. Breach of a non-molestation order or an occupation order is a criminal offence, as well as contempt of court. 

These protections are being used. Statistics show that the orders are being made: the government reports that in the year ending March 2020, 4,468 DVPNs were issued and 6,267 DVPOs were granted; and in the year ending December 2020, 36,952 non-molestation orders were made (an increase of 89% over the past nine years).

So if protective orders are being made, what is going wrong?  

A big issue seems to be in enforcing the orders, once breached. The BBC reports that in recent years there was a year-on-year drop in prosecutions, convictions and sentences for breach of restraining orders; in a period where the number of non-molestation orders granted rose by 48%, convictions for breach fell by 7%; and about a quarter of DVPOs issued were breached.

Failing to strictly enforce orders detracts from their protective nature: offenders realise they can breach orders without facing repercussions, and victims lose confidence in the system that should protect them. In enforcing orders, the Police are reliant not only on breaches being reported, but also other agencies such as the Crown Prosecution Service, the Probation Service, the courts and charities.

Family Courts can offer protection in addition to or in the absence of criminal proceedings. If Police fail to prosecute offenders for breaching a non-molestation order and/or an occupation order, there is a civil remedy in contempt of court allowing victims to apply for offenders to be imprisoned. However, the system with different enforcement mechanisms for different orders is complicated and public funding is limited.

Is anything going to change?

The government recognises concerns about the limitations of current protective measures. A two-year pilot scheme is set to be introduced this year. A new civil Domestic Abuse Protection Notice (DAPN) will allow the Police to provide immediate protection following a domestic abuse incident (instead of the current DVPN). A new civil Domestic Abuse Protection Order (DAPO) will provide flexible, longer-term protection for victims (instead of the current DVPO). 

Magistrates Courts will have the power to make DAPOs following applications from Police – but there will be alternative routes to obtain DAPOs too. Victims and specified third parties will be able to apply directly to Family Courts for DAPOs. Family, Criminal and Civil Courts will be permitted to make DAPOs of their own volition during existing court proceedings.

DAPOs will be much wider in scope than DVPNs – they will be able to impose positive requirements, not just restrictions. These might include requiring offenders to attend a behavioural change programme, an alcohol or substance misuse programme or a mental health assessment. Notification requirements and the use of electronic monitoring or tagging will ensure compliance can be more strictly monitored.

Breach of a DAPO will be a criminal offence (carrying a maximum penalty of five years’ imprisonment, a fine, or both) as well as contempt of court. Victims’ views and the public interest will be considered in deciding the appropriate sanction for breach.

No one can fail to be moved by the BBC’s examples of women failed by the current protective orders. These proposals are a welcome improvement, and the pilot study will be observed keenly by many.