For many years where issues of domestic violence arose between couples the police were often reluctant to act unless there was clear evidence of an assault. In these circumstances the police would suggest that victims speak to a Family Lawyer with a view to applying for a Non-Molestation order (i.e. injunction). However the Serious Crime Act 2015 which came into force on 29 December 2015 now provides the police with greater powers as coercive and controlling behaviour is a criminal offence.
Whilst the criminal law now offers greater protection to vulnerable parties it remains to be seen how the police will be able to gather evidence of coercive and controlling behaviour, and what will amount to sufficient behaviour in order to secure a conviction. I expect that the new law is likely to generate complex challenges over precisely what constitutes a criminal offence. However if the criminal law falls short of providing protection to vulnerable individuals, it is likely that the Family Courts are ready to acknowledge coercive control as domestic violence.
Pursuing domestic violence issues through the Criminal Courts certainly has a place in today’s society, however it can be seen as a blunt instrument as a prospection will carry a maximum sentence of 5 years in prison, a fine or both. The Criminal Courts will also have the power to make compensation and restraining orders. In light of these consequences, a married individual has to think carefully about referring the matter to the police and seeking a conviction because this may have a negative impact on the perpetrators ability to work and earn for the family.
If a vulnerable person is in doubt as to whether their abuser should be subject to the full range of criminal sanctions, an alternative approach may be to make an application to the Family Court for a Non-Molestation Order which could offer immediate protection (and further sanctions through the Criminal Courts in the event of a breach). The Non-Molestation Order would serve as a final warning to the abuser to modify their behaviour without there being a criminal conviction.
Furthermore if an application for a Non-Molestation Order was made in conjunction with application to define arrangements for children, the Family Court has the power to order the following assessments:
- Risk Assessments.
- Separated Parenting Information Programmes.
- Build Better Relationship Courses.
- Integrated Domestic Abuse Project.
These assessments and courses give the accused abuser an opportunity to gain insight into how their behaviour can be interpreted as domestic violence and gives them a targeted platform in how to change if the individual wishes to have a relationship with their children.
These opportunities are not available in the Criminal Courts, and so it is very common where an individual who is accused of domestic violence is convicted but still leaves court in denial about how their behaviour has been interpreted.