Domestic violence enforcement pitfalls

District Judge Roger Bird on enforcement proceedings without tears

Since the coming into force of part IV of the Family Law Act 1996, the whole system of applying for and obtaining injunctions to restrain domestic violence and occupation orders has been rationalised and improved, as has the procedure for enforcing such orders in the event of a breach.

However, the procedure for enforcement is not entirely trouble-free and experience has shown that the possibility for error exists in certain well-defined areas.

The power of arrest should normally only be attached to the parts of the order which restrain violence or threats of violence and to those parts of an occupation order or non-molestation order requiring a respondent to vacate a property or not to re-enter or come within a specified distance of a property.

Except in quite unusual circumstances, prohibition of harassment which does not involve violence should not attract a power of arrest.

Arrest lawful?

If you are acting for a complainant or respondent in enforcement proceedings where a power of arrest has been exercised, it is important to read the police statement to see exactly why the respondent was arrested.

If the officer told the respondent that he was being arrested 'for breach of the peace' this would be a separate matter and would not justify detention under the power of arrest.

Similarly, if the complainant had complained only of, for example, an abusive telephone call or text message (the latter are increasingly common) and no threat of violence was made, this would probably not justify the operation of the power of arrest and the respondent would be entitled to be immediately released.

It is equally vital to read the original order to ensure that a penal notice was endorsed upon it and that it has not expired and to see to what parts the power of arrest was attached.

Ascertaining when the order bearing the power of arrest was served on the respondent may also be productive.

You may well find that the order was served after the arrest; if this was the case, the respondent must be immediately released.

Once arrested under a power of arrest the respondent must be brought before a court within 24 hours.

So if you are unfortunate enough to be at home on a Saturday morning when your client, whether complainant or respondent, telephones you to say that they need representation, what line should you take?

Normally, it should not be too difficult to convince the judge that the whole matter should not be heard and disposed of there and then so the case will probably be adjourned.

Do not forget that when the respondent is remanded in custody he must be brought before the court again within seven days, whereas if he is released the hearing may be at any time convenient to the parties and the court.

If he is released there really is no point in imposing bail conditions; the county court has no means of enforcing them.

The most that could be done is to produce a beefed-up version of the original injunction.

Where the hearing is adjourned, the applicant should volunteer, or be required to serve a notice to show cause as to why the respondent should not be committed for contempt as soon as possible.

The reason for this is that, apart from what he may have been told when arrested, the respondent has no notice of what it is that the complainant alleges and he is entitled to know exactly what case he has to meet.

It is also good practice to require a statement of the applicant to be served with the notice to show cause and to require the respondent to serve a statement in reply before the hearing.

Undertaking breach

When the respondent gave an undertaking and it is alleged that he has broken it, different factors apply.

First, it must be established that a copy of the undertaking was either delivered to him at the hearing or, subsequently, served on him and if the latter, evidence of service is essential.

Then, apply using the notice to show cause procedure.

When you get to court, service of the notice to show cause must be produced.

At the hearing it will be necessary for oral evidence to be given where the facts are disputed.

Assuming that a breach is proved, what sentence should the court impose? Useful guidance was provided by the Court of Appeal in Hale v Tanner [2000] 2 FLR 879, which is summarised as follows:

- Committal to prison is not the automatic consequence of breach of an order;

- Nevertheless, there is no principle that prison should not be imposed on the first breach;

- The court has a range of options, from no order, through fines and sequestration to imprisonment;

- A mental health order may be appropriate;

- Where prison is appropriate, the length of sentence should be determined without reference to whether it is to be suspended;

- In committal there are two objectives - to mark the court's disapproval of the breach and to secure future compliance.

The seriousness of the events must be considered in that light;

- The period of imprisonment must bear some relation to the two-year maximum sentence;

- Suspension is a useful first way of securing compliance.

The length of suspension should be considered as a separate matter from the length of sentence;

- Where there are concurrent criminal proceedings, it must be remembered that contempt proceedings have a different purpose.

Nevertheless, the court would not wish a contemnor to be punished twice for the same matter.

There is other authority to the effect that the fact that there are pending criminal proceedings should not normally prevent the court from dealing with the contempt at an early stage.

Two other points: part IV contains provision for various orders which may be made ancillary to the main orders, such as requirements to pay rent or mortgage, keep a property in repair etcetera It was held in Nwogbe v Nwogbe [2000] 2 FLR 744, that such orders cannot be enforced by committal and that, indeed, it seems there is no obvious method of enforcement.

Secondly, district judges have full powers to deal with committal when the order was made under part IV but this is not the case when the order was made under the Protection from Harassment Act 1997.

In such cases, applications to enforce still have to be made to a circuit judge.

There is no provision for a power of arrest in protection from harassment cases.

District Judge Roger Bird sits at Bristol Combined Court Centre