Domestic Violence: A Public Matter to Which the State Has Responsibilities To Prevent

This article was written for Queen Mary Legal Advice Centre's blog.

Introduction

The correct terminology for violence that takes place in close adult relationships is all but settled, given that it is a wider problem than the term ‘battered wives’ would suggest. ‘Domestic violence’ (“DV” hereafter) will, therefore, be used in light of the definitions provided in the Legal Aid, Sentencing and Punishment of Offenders Act 2012[1] and Yemshaw v Hounslow LBC [2011] UKSC 3.[2] ‘DV’ will, therefore, be engaged as meaning any incident of or continuing behaviour that is controlling, coercive or threatening, whether violence or abuse (whether psychological, physical, sexual, financial or emotional). Such behaviour is between individuals who are associated with each other and any other form of abuse that give rise to a risk of violence, either directly or indirectly. Associated persons will be given the same meaning as that under section 62 (3) Family Law Act 1996 (FLA). Associated persons are or have been married[3] or civil partners,[4] cohabitants,[5] lived in same household[6], relatives,[7] agreed to marry,[8] or have been in an intimate relationship of a significant length where they have not lived with each other.[9]

Historically, the concept of privacy had been considered important.[10] O’Donovan[11] argued that one’s home is a private place; a refuge from society, where relationships can flourish uninterrupted by public interference. It was considered inappropriate to legislate on DV as it was thought of as being part of marital life. [12] There was a reluctance to intervene in the domestic situation as a result,[13] as it was considered inappropriate for the state to interfere in private matters. This is an archaic argument that falls back to the days when there were seemingly two levels of Government; the state, and the household. The head of the household would make decisions and his word would be law of private matters. Behaviour that is now considered DV, such as a husband hitting his wife with a stick the width of a finger, was considered a husband’s right to control his household.[14] Just as marital rape, similarly, was only considered a crime in 1991 having been thought of as a husband’s right.[15] This paper intends to illustrate the public nature of DV by looking at state responsibilities towards the citizen and those deriving from international agreements, with a particular focus on the European Convention of Human Rights[16] (“ECHR”). The ECHR is implemented, in the United Kingdom, though the Human Rights Act 1998 (“HRA”).

The HRA was enacted with the intention of ‘bring[ing] rights home’. [17] Numerous Convention rights places both negative and positive duties on the state. It is the latter that is most relevant to DV. ‘A positive obligation requires states to undertake specific preventive or protective actions […], whereas they must refrain from taking certain actions under a negative obligation.’[18] The positive duties imposed by the Convention rights compel the state to act to prevent and protect against DV. The HRA, similarly, via section 6, makes it unlawful for public authorities, such as local authorities, the police and the courts, to act in a way that is not compatible with Convention rights, including failure to act. Section 3 of the Act states that legislation must, so far as possible, be read and interpreted in light of the Convention rights unless it is not possible, in such cases a declaration of incompatibility should be made under section 4. The UK also has relevant obligations under the European Union and the United Nations.

Part one of this paper will consider the duty to provide protection against death, the risk of death, torture and "inhuman or degrading treatment or punishment. Protecting the right to respect for private and family life will be analysed in part two. Part three will look at housing rights. Discrimination against women will be discussed in part four. Maximising state resources, patriarchy and sex equality will be the focus of part five.

Part 1: Protection against Death, the Risk of Death, Torture and "Inhuman or Degrading treatment or Punishment"

The positive obligations in Article 2 ECHR, the right to life, place a duty on the state to protect citizens with a risk of death at the hands of other people. [19] There is a risk of death wherever there is physical violence, making Article 2 relevant to the physical aspect of domestic violence. The state will breach Article 2 if it does not take reasonable,[20] adequate[21] or effective[22] steps to protect citizens from violence. An obligation is, therefore, placed on the state to ‘intrude’ into what was considered a private matter in order to provide protection against the risk of death. The home in this respect is no different than another location, making DV a public matter and placing a duty on the state to intervene..

Article 3 ECHR, similarly, places DV into the public light as it requires the state to protect citizens against torture and "inhuman or degrading treatment or punishment" from other people.[23] This was emphasised in E v UK[24] where it was considered a fundamental value and, as a result, must include ill-treatment by private individuals that attains a level of severity.[25] Relevant factors for determining this severity include the nature and the context of the treatment, the manner of its execution, its duration, and its mental and physical effects, including positive and negative health implications.[26] Actual bodily harm and intense physical or mental suffering are of sufficient severity[27] while humiliating, demeaning or debasing an individual is encompassed in ‘degrading treatment’.[28] The latter also includes showing a lack of for, or diminishing, human dignity, arousing fear, anguish or inferiority to the extent where it breaks a person’s moral and physical resistance.[29] DV is more likely to be covered by Article 3 if it involves physical abuse or occurs over a long period.[30] This is not conclusive, however, as conduct that is insufficiently degrading of one person, may be degrading for another[31] and so mental effects age, sex and state of health of the victim can be relevant.[32] This is linked to the particular duty to protect vulnerable people, such as children[33]. Children need to be protected from domestic violence in order for the state to comply with Article 3 as it may arouse fear, anguish and inferiority to the extent that their moral and physical resistance is broken.

The public nature of DV is, therefore, self-evident, given that the positive obligation imposes state duties where they have failed to take reasonable measures when they knew or ought to have known that a person is being subjected to article 3 ill-treatment[34]. For one, it puts a duty on the police, prosecuting authority, the courts and other state bodies, such as social services, to take reasonable measures in order provide protection to an applicant suffering torture or degrading or inhuman treatment[35]. This can be achieved through pro-arrest and mandatory prosecution policies.[36] There is also a duty to provide an effective legal deterrent[37]. Failure to do so will constitute a breach of Article 3.

Effective legal deterrence, in the UK, can be found both in the civil and criminal law. Under the criminal law, a victim of DV may be able to argue that she has fallen foul of one or more of the offences contained in the Offences Against the Person Act 1861[38]. Similarly, there are offences under the Protection of Harassment Act 1997 relating to harassment[39] and making a person fearful of violence being used against them[40]. It is also a criminal offence to breach a non-molestation order.[41] The fact that conduct amounting to DV can constitute criminal offences supports the fact that DV is a public matter. Criminal behaviour offends society and therefore needs to be stopped.

Within the civil law, non-molestation orders, which can be made under section 42 of the FLA are a measure protecting against ill-treatment and the risk of death. It is order to prevent respondent from molesting[42] another person who is associated with the respondent[43] or a relevant child.[44] An associated person here is as described above.

Part 2: Protecting the Right to Respect for Private and Family Life

Article 8 ECHR protects the individual’s right to respect for private and family life. ‘Family’, for the purpose of Article 8, can be a husband, wife and children, unmarried couples subject to circumstances,[45] a child and one parent and where there are close personal ties between individuals.[46] The positive duty places DV in the public domain as the state must ensure that family life is respected. Occupation orders, as a protective measure, help to maintain the victim’s family life with other people that are not involved in the violence, which can be affected if the victim is forced to leave the home. Such measures aid the State’s compliance with the duty to ensure such respect for family life in regulatory frameworks and adjudication. Furthermore, allowing violence to continue could severely disrupt that parent’s family life with her child.[47] There is also a duty to reunite where the victim parent is no longer able to enjoy her family life with a child as they do not live together due to the violence.[48] It is, therefore, clear to see that occupation and non-molestation orders are measures that facilitate enjoyment of family life. The right to unification is, however, not absolute. A reunification must be in the child’s interests as well as the rights of all parties involved.[49]

There are also duties to respect private life that illuminate the public nature of DV. It should be noted that personal integrity, whether physical or psychological, is included in the right to a private life.[50] Physical and psychological harm imposed by DV could, therefore, infringe this right. Such harm could also interfere with the right to family life if it hampers a mother’s capability in caring for her children. The positive obligation compels the state to protect a person’s Article 8 rights and the state will breach their obligations if they do not intervene.[51]

An occupation order is one measure that is taken in order to protect the person from DV and is a measure that makes the state compliant with the above rights. An occupation order may remove the abuser from the dwelling house, which is usually the family home, or exclude him from an area of home[52] and gives the victim the right to enter or remain.[53] It is often the only way of supporting the non-molestation order and giving the applicant effective protection. There are two processes by which an occupation order can be obtained by an applicant against a person to whom she is associated in relation to a dwelling house that was, is or intended to be the home of the applicant and the person with whom she is associated.[54] The appropriate process depends upon whether the applicant is one that is entitled or non-entitled. An entitled applicant, set out in section 30 of the Family Law Act 1996 (“FLA”), is a spouse or civil partner[55] with home rights by reason of beneficial estate or interest, contract or statute under section 33(7) the court have a duty to make an order if it appears that the applicant or any child is likely to suffer significant harm if an order is not made, unless it appears that the respondent or any child is likely to suffer as great or greater harm as a consequence of the order being made (‘the balance of harm test’).[56] A person who does not fall within either of the two categories described above can only apply for an occupation order, as a non-entitled applicant, if he or she is the former spouse, cohabitant, or former cohabitant of the person who owns the property.[57]

The making of an occupation order may, however, infringe the perpetrator’s rights to his home given that it is the place in which he is violent to others.[58] This is clearly linked to the right to respect for the home, under article 8. The definition of ‘home’, under article 8, is an establishment to which the person has, namely, ‘sufficient and continuing links’.[59] Of relevance will also be other factual circumstances.[60] It could, therefore, be argued that DV belongs in the private sphere as state action may deprive him of his home. Justifications, however, can be found in paragraph 2 of article 8. Non-compliance with article 8 can be justified on the grounds of public safety, prevention of disorder or crime, protection of health or morals or protection of rights and freedoms of others. Occupation orders can, therefore, be justified as it protects the rights of the applicant or a child.[61] Departing from the right to private life suggests that a view regarding DV as a private matter is archaic and no longer reflects modern law given that the breach can be justified in order to protect the applicant or child. It is important to note, however, that, in order to prevent unjustified infringements of the perpetrators rights, the qualifications for an occupation order are hard to satisfy. The threshold for the required ‘significant harm’ is particularly high, given the fact that an occupation order would remove the perpetrator from his home. The conduct has to be sufficiently severe to justify such an order.

Part 3: Discrimination Against Women

As stated in the Home Office’s paper, Living Without Fear[62], one in four women experience DV at some point in their lives. The state, therefore, has a responsibility to take action against DV in order to prevent discrimination against women. Article 14 of the ECHR, prohibiting discrimination, imposes state responsibility in relation to DV. DV is a public matter as a failure to respond to it is considered discrimination against women,[63] given that inadequate legal response disproportionately affects women as they are far more likely to be victims of DV.

The notion that DV is a public matter[64] is reinforced, on the supranational, by the UK’s obligations toward the EU, which place additional responsibilities upon the state. Declaration 19[65], accompanying the Treaty of Lisbon, states that in its effort to eliminate inequalities between men and women, the EU will combat DV. It states also that Member States should take necessary measures to punish such criminal acts and to protect and support victims. The UK, as a EU Member State, is obliged to act against DV, under the Lisbon Treaty, in the forms of criminal law, support and protection.

The UK, similarly, has obligations under international agreements under articles 2 and 5 of the United Nations’ Convention on the Elimination of All Forms of Violence Against Women (“CEDAW”).[66] Article 2 places an obligation on the state to embody the principle of sex equality through law and other appropriate means. They must do so to give practical realisation to this principle; to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting discrimination against women; to establish legal protection of the rights of women on an equal basis with men and effective protection against discrimination and to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise[67]. Article 5 places an obligation on the parties to modify social and cultural patterns concerning gender roles, with the view of eliminating the idea of inferiority and superiority between sexes. This includes introducing legislative protection against DV.[68] The importance of introducing legislative protection that aims to removes power relations cannot be understated. It sends an unequivocal message of condemnation inside and outside the home that illustrates DV as a public matter.

Part 4: Housing Rights

Looking beyond the HRA, domestic violence continues to be considered a public matter. There is a duty, under the Housing Act 1996, that is placed upon local authorities to house a person who is in ‘priority need’, and not intentionally homeless.[69] A person is ‘homeless’ if she has no available accommodation in the UK or elsewhere[70]. The accommodation must be available for her or any other person reasonably expected to live with her. She cannot be reasonably expected to continue to occupy accommodation where she, a residing family member or any other person who might be reasonably expected to reside with her is victim of DV.[71] They, therefore, will be considered homeless.[72] A victim of DV will be considered as a priority need under section 189(1) Housing Act 1996.[73] This requires public funding and resources and therefore is no longer a private matter as the State is assuming the responsibility of protecting victims by providing them with the means of escaping the violence.

Part 5: Maximising State Resources

‘Battering’ causes public problems as it increases NHS costs, uses police time and lowers labour productivity as victims take time off work. [74] It is thought that DV costs the economy £5.8 billion per year once these three issues are taken into account.[75] Additionally, half of the women seeking help for mental health problems are victims of DV.[76] This, therefore, shows that DV has a significant impact on the public purse and state resources. It, then, becomes the responsibility of the state to manage its resources. It is required, therefore, to provide protection towards victims of DV in order to limit the impact that it has on State resources. The home has clearly become a dangerous place, especially for women and children, and so is not exempt from state intervention.[77]

Conclusion

Given the UK’s obligations under the ECHR, EU and CEDAW and general state responsibilities, it is clear that DV is a public matter. It has become a public matter because the state is obliged to act against DV and to provide support and protection to victims. Domestic violence never stays a private matter as it has a detrimental affect on the wider public. It affects the victim’s happiness and capabilities to participate in the outside world, forcing the victim to live in fear and intimidation. It can also affect the future of children involved or affected by DV. The obligations placed upon the state not only make DV a public matter but also ensure that domestic law protects victims. This highlights the importance of state responsibilities and why DV can no longer be considered a private matter that hides behind closed doors. The state must open such doors and protect its citizens from violence and abuse.

Bibliography

[1] Sched. 1 (9); Defines domestic violence ‘as any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.’

[2] In para 28, Baroness Hale’s leading judgement stated that domestic violence ‘includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to a risk of violence’; The case saw Ms Yemshaw who was married and had two children, aged 6 and 8 months, and was fearful of her husband. He had never been physically violent but had emotionally, financially and psychologically abused her. The purpose was to find out whether it was unreasonable, via domestic violence, not to rehouse them under the Housing Act 1996

[3] S62(3) (a) Family Law Act 1996

[4] S62(3)(aa) Family Law Act 1996; including same-sex couples who are living as husband and wife.

[5] S62(3) (b) Family Law Act 1996

[6] S62(3)(c) Family Law Act 1996

[7] S62(3)(d) Family Law Act 1996; ‘relative’ is defined in section 63(1) as meaning: (a) the father, mother, stepfather, stepmother, son , daughter, stepson, stepdaughter, grandmother, grandfather, grandson, granddaughter of that person or that person’s spouse or former spouse. (b) the brother, sister, uncle, aunt, niece or nephew (whether of full or half blood or by affinity) of that person or the their spouse or former spouse.

[8] S62(3)(e) Family Law Act 1996; for an agreement of marriage, section 41(1) requires evidence in writing although subsection (2) provides the gift of an engagement ring or a ceremony in the presence of one or more witnesses, may be evidence.

[9] S62(3)(ea) Family Law Act 1996;

[10] See Schneider, E. (1994), The Violence of Privacy, in Fineman, M. and Myktiuk, R. (eds) Public Nature of Private Violence, London: Routledge

[11] O’Donovan, K. (1993), Family Law Matters, London:Pluto, p.107

[12] Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.291

[13] Cabinet Office, Living Without Fear, (The Stationery Office, London, 1999), p4

[14] Cited in Doggett, M. (1992), Marriage, Wife-Beating, and the Law in Victorian England, London: Weildenfeld & Nickelson;

[15] R v R [1991] UKHL 12;

[16] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5

[17] See “Rights Brought Home” [CM 3782]

[18] http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/4705 .htm [Accessed on 30/01/14]

[19] Opuz v Turkey (Application no. 33401/02);

[20] Z v United Kingdom [2001] 2 FCR 246, para 73;

[21] A v United Kingdom [1998] 3 FCR 597, para 24;

[22] Z v United Kingdom [2001] 2 FCR 246, para 73;

[23] See A v United Kingdom (Human Rights: Punishment of Child) [1998] 2 FLR 959;

[24] E v United Kingdom (2003) 36 EHRR 31;

[25] Ireland v United Kingdom (1978) 2 EHRR 25 at [162];

[26] R (on the application of B) v Responsible Medical Officer, Broadmoor Hospital [2005] EWCA (Admin) 1936 at [54]

[27] Ireland v United Kingdom (1978) 2 EHRR 25;

[28] Edwards, S (1996), Sex and Gender in the Legal Process, London: Blackstone, ch. 6

[29] Price v United Kingdom (1978), no. 33394/96 (1988) 55 D&R 1988, paras 24-30;

[30] Opuz v Turkey (Application no. 33401/02);

[31] Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;

[32] Costello-Roberts v United Kingdom (1995) 19 EHRR 1 1120;

[33] A v United Kingdom [1998] 3 FCR 597 para 20;

[34] See Osman v United Kingdom [1998] EHRR 101;

[35] MC v Bulgaria (2005) 40 EHRR 20;

[36] See Choudhry, S. and Herring J. (2006), Righting Domestic Violence, IJLP&F 20 (95), p7 & 8

[37] Ibid, p2;

[38] The offences include common assault, assault occasioning actual bodily harm, wounding and causing grievous bodily harm and wounding and inflicting grievous bodily harm;

[39] S1 Protection of Harassment Act 1997;

[40] S4 Protection of Harassment Act 1997;

[41] s.42A FLA;

[42] The meaning of molesting has been discussed at length and limitations do not allow for discussion. However, C v C states that a high level of harassment is required;

[43] S42(1)(a) Family Law Act 1996; An associated person is as described above;

[44] S62(2) Family Law Act 1996;

[45] See XYZ v UK [1997] 2 FLR 892;

[46] Lebbink v Netherlands (Application no. 45582/99) 1 June 2004;

[47] Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;

[48] Eriksson v Sweden (1990) 12 EHRR 183 at [71]

[49] Kosmopoulou v Greece (Application no. 60457/00) 5 February 2004

[50] Anfrijeva v Southwark LBC [2003] 3 FCR 673

[51] Ibid

[52] s33(3)(b) Family Law Act 1996

[53] s33(3)Family Law Act 1996

[54] s33(1)(b)(I and ii) Family Law Act 1996;

[55] S30(2) Family Law Act 1996;

[56] The court must first ask itself what will happen if the court makes no order. The court must consider whether applicant or relevant child will suffer significant harm attributable to the conduct of the respondent. If the answer is ‘no’ then the test is not satisfied. If the answer is ‘yes’ then the court must consider whether the respondent or any relevant child suffer significant harm if the court does not make an order. If the answer to that question is ‘no’ then the court must make an occupation order. If the harm the applicant or child will suffer is greater than that which the respondent will suffer then an order must be made. Harm must be attributable to the conduct of the respondent. Harm is defined in Section 63(1) to mean ill-treatment or the impairment of health (and in relation to a child impairment of development).

[57] There is much more detail and relevant case law that could be discussed. It, however, is not the key focus of this paper.;

[58] Choudhry, S. and Herring, J. (2006), Domestic Violence and the Human Rights Act 1998: A New Means of Legal Intervention, Public Law 752;

[59] Gillow v United Kingdom (1986) 11 EHRR 335;

[60] Buckley v United Kingdom (1996) 23 EHRR 101;

[61] Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn);

[62] Cabinet Office, Living Without Fear, (The Stationery Office, London, 1999), p4

[63] Opuz v Turkey (Application no. 33401/02)

[64] See Lamont, R. (2013), Beating Domestic Violence? Assessing The EU’s

Contribution To Tackling Violence Against Women, Common Market Law Review 50: 1787–1808.

[65] On Article 8 of the Treaty on the Functioning of the European Union.

[66] UN Committee on the Elimination of Discrimination Against Women (CEDAW),

[67] Article 2 (a)- (e), UN Committee on the Elimination of Discrimination Against Women (CEDAW),

[68] UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendations No. 12, adopted at the Eleventh Session, 1992 (contained in Document A/47/38), 1992, A/47/38,

[69] S. 175(4) Housing Act 1996; there are other duties that are less relevance to DV;

[70] Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.320;

[71] S177(1)(a) & (b) Housing Act 1996

[72] Bond v Leicester City Council [2002] 1 FCR 566;

[73] R v Kensington and Chelsea LBC, ex parte Kihara (1996) 29 HLR 147;

[74] Herring, J. (2013), Family Law, Pearson Education Limited (6th Edn), p.330

[75] Walby, S. (2004), The Cost of Domestic Violence, London: Home Office;

[76] Home Office (2003a), Safety and Justice, London: Home Office, p.10;

[77] Diduck, A. and Kaganas, F. (2012), Family Law, Gender and the State: Text, Cases and Materials, Hart Publishing (3rd Edn)