Submitted by Erin Nesbitt
This scenario concerns the legal avenues available to Neil in protecting himself and his son. As Sylvia has ‘struck’ Neil, her actions qualify as common assault under the Offences Against the Person Act 1861.[1] However, as Neil has stated he ‘does not want... criminal proceedings to be taken,’ he should be advised of the available civil remedies. For Neil’s wishes that ‘the violence [stops]’ and that Sylvia ‘leave the house until she gets... help with her drinking’, a non-molestation order (NMO) and an occupation order (OO) are, respectively, the most effective remedies. If Neil needs to ‘obtain a legal order quickly,’ he should be advised of an ex parte application. The likelihood these remedies are granted will be analysed to advise him on their likely outcomes.
Under Article 20(1),[2] an NMO can prohibit someone from ‘molesting another person... associated with the respondent’ or ‘a relevant child’. It may then serve Neil’s wish that the violence stops. Although molestation is undefined, in C v C (Non-Molestation Order: Jurisdiction), the court interpreted ‘molestation’ as ‘deliberate conduct... aimed at a high degree of harassment... so as to justify intervention by the court’.[3] In Davis v Johnson,[4] violence amounted to molestation: Sylvia’s physical abuse will therefore satisfy this requirement.
An NMO is available to ‘associated persons’, including ‘persons who are... married to each other’, such as Sylvia and Neil.[5]The court must also consider ‘the health, safety and well-being of the applicant’ or ‘any relevant child’[6]: Sylvia’s physical violence can be concluded to jeopardise Neil’s ‘safety’. A ‘relevant child’ includes ’any child who is living with... either party,’[7]such as Matthew. That he has witnessed these ’arguments’ and ‘become frightened’ of Sylvia suggests his well-being may be at risk. There is no definitive age at which the court considers children’s views, although it is typically older than Matthew: even suggested reforms have only advocated for children over seven.[8] However, the child’s welfare is the court’s ‘paramount consideration’.[9] If it is ascertainable that Matthew fears Sylvia, this will be considered. It could also be considered that Sylvia’s ‘heavy drinking’ may progress: if the severity of these incidents correlates to Sylvia’s drinking, they may pose more danger to Neil and Matthew.
Sylvia may raise the argument per Banks v Banks,[10] that an order cannot be made against someone unable to control their actions. However, in Banks, the respondent had such little awareness of her actions that an NMO was pointless. Provided Sylvia’s stress does not impair her awareness, any diminished consciousness would be due to voluntary intoxication: an NMO would therefore still serve a purpose whilst she is sober. Additionally, this case being raised by an alcoholic abuser is a ’concern’[11] the courts are unlikely to entertain. G v G (Occupation Order: Conduct)[12] compounds this, specifying conduct is attributable to the respondent even if unintentional. Thus, it is highly likely an NMO will be granted.
An NMO may be made for a specific period or until further notice,[13] and may be phrased either generally or regarding particular acts. As Neil wants the violence to stop, the order may prohibit Sylvia from being violent toward him. An NMO ’may also exclude the respondent from a defined area in which a dwelling-house is included’,[14] although the court is unlikely to exclude Sylvia from her own home: Neil must instead seek an OO.
An OO serves to remove an abuser from a ‘dwelling-house’, such as Sylvia and Neil’s home. Although the house is in Sylvia’s sole name, Neil is an ‘entitled person’ through marriage under Article 11(1)(a) FHDVO, allowing him to seek a regulatory order under Article 11(3). This may ‘require [Sylvia] to leave the dwelling-house'[15] ‘until the event‘[16] she ‘gets help with her drinking‘.
Courts will first apply the ‘significant harm test’ (SHT) under Article 11(7) of the FHDVO. An order must be made if ’the applicant or any relevant child is likely to suffer significant harm attributable to... the respondent’. Under Article 2(2) FHDVO, harm is defined as ‘ill-treatment‘ or ‘impairment of health‘. For children, this extends to impairment of ‘development‘. In Chalmers v Johns,[17] Thorpe LJ noted judges should consider OOs ’draconian’ measures ’only justified in exceptional circumstances’: G v G[18] implies little other than violence is ’exceptional’ enough. This requirement is fulfilled, increasing the likelihood an OO is granted. Further, as above, Matthew’s fear of Sylvia suggests his development could be ’impaired’ should the OO not be granted.
However, if ‘the harm likely to be suffered by the respondent or child in that event is as great, or greater than’ this harm, the order will not be granted under the SHT.[19] Sylvia may argue being forced out of her home would raise her already-high stress levels. However, it is unlikely the court will consider this harm to be ’as great’ as that suffered by Neil or Matthew. If Sylvia, like Neil, cannot source alternative accommodation, she may argue Neil could more easily relocate to Scotland as he works from home. However, Neil is Matthew’s primary carer, and Matthew is ’settled in the local primary school’. While, in Chalmers v Johns,[20] a child moving further from school was not considered ’significant harm,’ Matthew would be forced to move both school and country. Such a change in circumstances could also ’impair’ his ’development,’ and further lessen the weight of Sylvia’s argument, meaning the OO will likely be granted.
While, if the SHT does fail, the court is not obliged to make an order, it may still grant one discretionarily. In this event, housing needs, financial resources, and the parties’ well-being and conduct must be considered.[21] As above, the court is unlikely to rule that Sylvia’s housing needs outweigh Neil‘s or Matthew’s, or that they will consider the effect of an OO more damaging to her wellbeing. Financially, if Sylvia earns more than Neil the courts will consider that Sylvia has better financial means to source accommodation nearby. Regarding ’conduct,’ while courts are more attuned to the protection of victim(s) than punishing perpetrators, the fact Sylvia’s abusive ‘conduct’ is causing Neil to seek an OO may push the court towards granting an OO. However, in Re Y (Children) (Occupation Order),[22] the house was deemed large enough to render an OO unnecessary. As Sylvia and Neil live in a ‘large’ house, an NMO may be ruled sufficient in preventing Sylvia from harming Neil or Matthew under an exclusion zone.[23] Therefore, whether the OO is granted is dependent on whether the SHT is satisfied under Article 11(7), or whether the court considers it practicable for both parties to coexist in separate areas of the home.
To obtain an order quickly, Neil may consider an ex parte application for an interim order under Article 23 of the Family Homes and Domestic Violence (NI) Order 1998, under which an order could be made without notifying Sylvia where ‘just and convenient’. This will be granted if there is ‘any risk of significant harm’ to Neil or Matthew without an immediate order. This may only be made for a short period to provide Sylvia with a hearing as soon as ‘practicable, just and convenient,’ in line with her ECHR Article 6 right.[24]
If granted, Sylvia must adhere to the Order(s): breach is a criminal offence, meaning Sylvia would risk ‘a fine not exceeding level 5 on the standard scale,’ and/or imprisonment ‘not exceeding six months’.[25] Alternatively, under Article 112(3)-(8) of the Magistrates’ Courts (NI) Order 1981, a court of summary jurisdiction may deal with enforcement. As Neil does not wish criminal action to be taken, he could instead make a civil complaint to a magistrates’ court.
Summarily, an NMO will likely be granted with the effect of preventing Sylvia from violence against Neil. An OO may also be granted provided the court finds Sylvia’s conduct serious enough to warrant ‘significant harm’ under Article 11(7), or discretionarily under Article 11(6), temporarily removing Sylvia from the home until she gets help. However, dependent on the house’s size, the two may coexist separately within the home under an NMO, meaning the granting of an OO is uncertain under Neil’s circumstances.
Table of Cases
Banks v Banks [1999] 1 FLR 726
C v C (Non-Molestation Order: Jurisdiction) [1998] 1 FLR 554
Chalmers v Johns [1999] 1 FLR 392
Davis v Johnson [1979] AC 264
G v G (Occupation Order: Conduct) [2000] 2 FLR 36
Re Y (Children) (Occupation Order) [2000] 2 FCR 470
Table of Legislation: UK
Children (Northern Ireland) Order 1995
Family Homes and Domestic Violence (NI) Order 1998
Law Reform (Miscellaneous Provisions) (NI) Order 2005
Offences Against the Person Act 1861
Table of Legislation: Europe
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended)
Bibliography
Family Justice Council: Voice of the Child Sub-Group, Enhancing the Participation of Children and Young People in Family Proceedings: Starting the Debate (FLJ 2008)
J Herring, Law Express: Family Law (Pearson 2021)
Footnotes
[1] s 42 [2] Family Homes and Domestic Violence (NI) Order 1998 s 20(1) [3] [1998] 1 FLR 554 556H [4] [1979] AC 264 [5] FHDVO s 3(a) [6] ibid s 20 (5) [7] ibid s 3(2) [8] Family Justice Council: Voice of the Child Sub-Group, ’Enhancing the Participation of Children and Young People in Family Proceedings: Starting the Debate‘ [2008] FLJ 38, 41 [9] Children (Northern Ireland) Order 1995 s 3 [10] [1999] 1 FLR 726 H [11] Jonathan Herring, Law Express: Family Law (8th edn, Pearson 2021) 310 [12] [2000] 2 FLR 36 [13] FHDVO s 20(7) [14] Law Reform (Miscellaneous Provisions) (NI) Order 2005 s 13 [15] FHDVO s 11(3)(g) [16] FHDVO s 10 [17] [1999] 1 FLR 392 [26] [18] (n 12) [16] [19] FHDVO s 11(7)(b). [20] [1998] EWCA Civ 1452 [21] FHDVO s 11(6) [22] [2000] 2 FCR 470 [23] Law Reform (Miscellaneous Provisions) (NI) Order 2005, Art 13 [24] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 6 [25] FHDVO s 25