The law and practice surrounding personal protection injunctions has been the subject of constant development, particularly given the many and varied ways in which people interact socially and communicate. In this update, the latest changes that have been brought about in court procedure and enforcement, and by police powers and orders to prevent and/or control child sexual exploitation, are considered in turn.
A new Part 37 to the Family Procedure Rules 2010 SI No 2955 was inserted by the Family Procedure (Amendment No 2) Rules 2014 SI No 667 in April 2014. Recent case-law has considered the effect of Part 37, in particular, Cherwayko v Cherwayko (No 2) (contempt, contents of application notice) [2015] EWHC 2436 (Fam). During financial relief proceedings, the wife applied to commit the husband to prison for alleged breaches of an undertaking and orders. Mrs Justice Parker DBE emphasised that rule 37.10(3)(a) provides that the committal notice must set out, in full, the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt, including, if known, the date of each of the alleged acts and be supported by an affidavit (paras 55–58).
Subsequently, in Cherwayko v Cherwayko (No 3) (contempt in financial remedy proceedings and costs) [2015] EWHC 2482 (Fam), following an application by the wife to commit the husband to prison, he did not attend the court. The court felt that the husband's reasons for non-attendance lacked substance, and consequently the court imposed an immediate custodial sentence.
Section 24 of the Crime and Security Act (CSA) 2010 brought in the imposition of domestic violence protection notices in March 2014. The notice may be issued to a person aged 18 years or over if the authorising officer has reasonable grounds for believing that:
Section 25 of the CSA sets out the contents and service of the domestic violence protection notice.
Section 27 of the CSA covers the application for a domestic violence protection order. This provides that if a notice has been issued, a constable must apply for a domestic violence protection order, and the application must be made by complaint to a magistrates’ court. The application must be heard in the magistrates’ court not later than 48 hours after the notice was served under CSA s25(2).
Section 28 of the CSA provides that the order may be in force for no fewer than 14 days beginning with the day on which it is made, and no more than 28 days beginning with that day. These orders can run alongside criminal proceedings.
There has been a growth in the use of the inherent jurisdiction of the High Court to allow prohibitive injunctions to be granted on behalf of children who are subject to child sexual exploitation. The first such case was that of Birmingham City Council v Riaz and others [2014] EWHC 4247. This case involved injunctions being sought by the local authority against various men who, it was argued, posed a sexual risk towards a 17-year-old child. Some of the key terms on the injunctive orders were that the men were prohibited from having contact with the child concerned, and this was not only in terms of prohibiting direct contact and physical contact, but also through social-networking sites.
… the latest changes that have been brought about in court procedure and enforcement, and by police powers and orders to prevent and/ or control child sexual exploitation are considered in turn
In the later case of Redbridge LBC v SNA [2015] EWHC 2140 (Fam), where the local authority similarly invited the High Court to invoke the inherent jurisdiction in order to protect vulnerable youngsters from a particular man, who was perceived to be a sexual risk, the court decided against the making of such orders. The court ruled that the inherent jurisdiction was to be used ‘sparingly’, and in situations where the result could not be achieved through case-law, statute or otherwise (para 33). In particular, by the time Redbridge LBC was before the court, two new types of order had been brought in by the Sexual Offences Act (SOA) 2003 as amended by Antisocial Behaviour, Crime and Policing Act 2014 s113 and Sch 5. Sexual harm prevention orders are available under SOA ss103A–K, and sexual risk orders are available under SOA ss122A–K. The High Court decided that as a result of the criminal courts being able to make sexual risk orders, those would provide the protection that the local authority was seeking, and therefore the injunction being sought was not granted.
The issue about whether the court should be invoking the inherent jurisdiction to grant orders to prevent and/or control child sexual exploitation was left open in the more recent case of Birmingham City Council v SK (by her children's guardian) [2016] EWHC 310 (Fam). The local authority argued that sexual risk orders did not ‘explicitly curtail the use of the inherent jurisdiction to control or prevent child sexual exploitation’ (para 27).
There have been substantive changes to family public funding as a result of the implementation of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. In relation to family law cases, LASPO Act Sch 1 para 12 contains the ‘domestic violence’ definition for determining eligibility for public funding. The evidence that is required in order to acquire public funding, as set out initially in the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 as amended, and more particularly in regulation 33 (supporting documents: domestic violence), has been further updated.
The Court of Appeal decided, in February 2016, in the case of R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91; (2016) April CILExJ pp20–21, that regulation 33 frustrated the purpose of the LASPO Act, as evidence of domestic violence needed to be shown within 24 months, and made no provision about financial abuse. This part of the appeal was, therefore, allowed.
Subsequently, the Civil Legal Aid (Procedure) (Amendment) Regulations ('Procedure (Amendment) Regulations') 2016 SI No 516 were enacted. Under the Procedure (Amendment) Regulations, there were changes to regulation 33(2) in terms of the evidence of domestic violence that must be provided. These interim regulations allow the evidence of domestic abuse to go back to up to 60 months.
As for abuse in relation to financial matters, the Legal Aid Agency stated that it has discretion to consider evidence of such abuse, which could include looking at bank statements, e-mails and text messages between the parties to demonstrate such abuse. Also, practitioners should note the implementation of the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 SI No 781, which came into effect on 22 July 2016. These regulations amend the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 to change the criteria that must be taken into account - in terms of prospects of success - when considering eligibility for public funding.
The offence of controlling or coercive behaviour in intimate or familial relationships was brought into effect, in December 2015, under Serious Crime Act 2015 s76. The purpose of this offence was to close the gap in the law around patterns of controlling or coercive behaviour in an on-going relationship between intimate partners or family members. The offence carries a maximum sentence of five years’ imprisonment, a fine or both.
Similarly to the offences under the Protection from Harassment Act 1997, the offence requires behaviour which takes place ‘repeatedly or continuously’ (s76(1)(a)). The behaviour must have had a ‘serious effect’ on the victim, ie, it had caused the victim to fear violence would be used against them on ‘at least two occasions’ or had had a ‘substantial adverse effect on the victim’s day-to-day activities’ (s76(1)(c) and s76(4)(a) and (4)(b)). The behaviour can take various forms, such as isolating a person from their friends and family, monitoring their time, monitoring a person via online communication tools or using spyware, or taking control over aspects of their everyday life, such as (among many other forms of behaviour) where they can go, who they can see, what to wear and when they can sleep.*
The law on personal protection injunctions has been shown to be in need of constant reform. The courts and parliament are being kept ‘on their toes’ in ensuring that modifications are made to the law so as to cater for developing social situations. The past 20 years has seen quite some change, and no doubt it will not stop there.