Domestic Abuse Protection Orders: Sacha Lee Provides an Update

Further to Carolina Marin Pedreño’s and Sacha Lee’s article regarding the Pilot Practice Direction on Domestic Abuse Protection Orders (“DAPOs”) (Pilot Practice Direction on Domestic Abuse Protection Orders – still more to be done) it is welcome news that they will be piloted across England & Wales from November 2024.

Existing forms of family court (i.e. civil) protection for victims of domestic abuse include Non-Molestation Orders and Occupation Orders.

Briefly, a Non-Molestation Order prohibits a person (the respondent) associated with the applicant from molesting them or a relevant child (section 42 Family Law Act 1996 (FLA 1996)). “Molestation” is not defined in the FLA 1996, but in practice, Non-Molestation Orders are used to protect a person from violence, harassment and threats. The order can cover a wide range of behaviour.

An Occupation Order grants the applicant the right to occupy a dwelling-house. The court can decide who should or should not reside in all or part of the home. Occupation orders can also exclude the other person from an area around the home. When in force, an order can also deal with practical matters of occupation, including who bears responsibility for payment of the rent or mortgage on the property and whether the occupying party should pay a rent to the other person. The court’s powers to make Occupation Orders derive from sections 33 and 35 to 38 of the Family Law Act 1996 (FLA 1996).

Non-Molestation Orders and Occupation Orders can be applied for urgently, without notice to the perpetrator in appropriate circumstances, and the applicant may be eligible for legal aid (the respondent is not). There is no court fee for these applications.

However, on 20 February 2023, the government announced new measures to protect victims of domestic abuse, including a pilot of DAPNs and DAPOs introduced by the Domestic Abuse Act 2021.

Part 3 of the Domestic Abuse Act 2021 (“DAA 2021”) introduced a new civil Domestic Abuse Protection Notice (“DAPN”) to provide immediate protection following a domestic abuse incident.

A DAPN is issued by the police and could, for example, require a perpetrator to leave the victim’s home for up to 48 hours (while they make an application for a DAPO).

DAPOs are interdisciplinary; criminal, family, and civil courts may make a DAPO of their own volition during existing court proceedings (sections 28 and 31 DAA 2021). They are also longer-term in scope.

DAPOs can impose both prohibitions and positive requirements on perpetrators. These could include prohibiting the perpetrator from coming within a specified distance of the victim’s home and/or any other specified premises, such as the victim’s workplace, as well as requiring the perpetrator to attend a behaviour change programme, an alcohol or substance misuse programme or a mental health assessment.

The requirements imposed by a DAPO may be varied by the courts so that they may respond to changes over time, for example,  the perpetrator’s behaviour and the perceived level of risk they pose.

The courts have the express power to use electronic monitoring (‘tagging’) to monitor a perpetrator’s compliance with certain requirements imposed by a DAPO.

All DAPOs include notification requirements, which require perpetrators to notify the police of their name and address, along with any changes to this information. The Act also includes the power for additional notification requirements to be specified in regulations, which courts may impose on a case-by-case basis as appropriate.

Breach of a DAPO is a criminal offence, carrying a maximum penalty of up to five years’ imprisonment, or a fine, or both. A breach could also be dealt with as a civil contempt of court, and the victim’s views should be considered together with other issues of public interest when deciding which sanction for breach is appropriate.

The new Pilot Practice Direction aims to harness the existing powers available (Non-Molestation Orders and Occupation Orders by way of example) whilst also providing essential ‘teeth’ to ensure proper protection for victims (by utilising DAPNs and DAPOs), in a single court order. This aims to simplify the application process (to reduce trauma for victims) and also enforcement (if necessary).  

During the Pilot, victims will not be required to pay a court fee when making an application for a DAPO to ensure that costs do not act as a deterrent (while work is done to identify the costs of such applications, which, it is hoped, will continue to be funded by the government when the policy is implemented nationally).

DAPNs and DAPOs will be piloted in Greater Manchester and Croydon, Sutton, and Bromley in South London, as well as by the British Transport Police, for two years. 

If you have been the victim of domestic abuse, or if you have any questions or concerns relating to the issues touched upon above, please do not hesitate to contact us on +44 (0)20 7242 2556 or at mail@dawsoncornwell.com. We are here to help.

The team at Dawson Cornwell are specialists in assisting with these issues and are also authorised to undertake civil legal aid work. We offer trauma informed and sensitive service to our clients.

Sacha Lee

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.