Seeking and securing protection from domestic abuse through the family courts: an examination into the accessibility of non-molestation and occupation orders under Part IV of the Family Law Act 1996 and Domestic Abuse Protection Orders under Part Three of the Domestic Abuse Act 2021

Speed, Ana (2021) Seeking and securing protection from domestic abuse through the family courts: an examination into the accessibility of non-molestation and occupation orders under Part IV of the Family Law Act 1996 and Domestic Abuse Protection Orders under Part Three of the Domestic Abuse Act 2021. Doctoral thesis, Northumbria University.

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Abstract

This work, published over a four-year period, focusses on the accessibility of non-molestation and occupation orders under Part IV of the Family Law Act 1996 and Domestic Abuse Protection Orders (DAPOs) under Part Three of the Domestic Abuse Act 2021. The collection addresses three questions (i) To what extent are non-molestation orders and occupation orders accessible to victims of domestic abuse? (ii) How is the accessibility of these orders impacted by societal crises such as Covid-19 and what lessons can be learned for future crises? (iii) To what extent is the new DAPO likely to be a more accessible form of protection than non molestation and occupation orders? The work is both retrospective, analysing the impact of key reforms on accessibility (i.e., the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)) and forward looking, exploring how the Domestic Abuse Act 2021 may facilitate access to remedies by reforming the law on special measures and introducing a new protective order. The work is also timely in charting a pathway for the future of the family court as decisions are being made about the extent to which the Remote Access Family Court (RAFC) will be retained, even after pandemic-related reasons for its use no longer apply. The work combines doctrinal and empirical research and draws on qualitative and quantitative data from four separate projects. A range of voices are represented in the data including legal practitioners, professionals supporting victims of domestic abuse and victims themselves.

The central conclusion reached is that the accessibility of protective orders has been undermined by wider family justice reforms which have taken place over the last decade as part of austerity measures and which have reduced the accessibility of the family courts more generally. Whilst it was intended that legal aid should be preserved for victims of domestic abuse, the restrictive means test has resulted in large numbers of victims being ineligible for public funding. This has had the impact of both deterring some victims from pursuing protection and increasing the number of victims who appear as litigants in person. The work highlights that litigants in person can experience barriers at all stages of the court process and these barriers may reduce a victim’s prospects of securing protection. In relation to the rates at which orders are granted, the research shows that whilst non-molestation orders are granted generously, the odds are stacked against victims to secure occupation orders – a trend which has been exacerbated during the Covid-19 pandemic. Although there was a sustained increase in applications for non-molestation orders and occupation orders in the first year of the pandemic, suggesting that the transition to the RAFC has not impeded victims’ access to protective orders, the pandemic has exacerbated pre-existing barriers for litigants in person. Notwithstanding, the research also identifies benefits of the RAFC in safeguarding victims’ safety and wellbeing, indicating there is value in retaining remote hearings in some circumstances beyond the pandemic. Whilst prima facie the new DAPO is set to offer a more accessible form of protection (both because of the availability of third-party applications and because the legal requirements to secure an order are lower than the existing criteria for occupation orders), there is a need for thoughtful implementation to ensure that existing problems are not simply transferred across to the new regime.

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