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A new scheme is being piloted in England and Wales aimed at offering better protection to victims of domestic abuse.
Current framework: Non-Molestation Orders and Occupation Orders
It is possible to seek an injunction through the family court to prevent someone causing further harm to an individual, and/or to restrict their rights to occupy a family home, under the Family Law Act 1996. Where the court is satisfied that it is required, they can make a Non-Molestation Order and/or an Occupation Order.
A Non-Molestation Order seeks to prevent someone from abusing or harassing another person. The order will restrict what the person can (or cannot) do and where they can go, typically preventing them from threatening or using violence, intimidating, harassing, pestering or communicating with the victim or their children, and will prevent them from going to certain prescribed places, or within a certain radius of a location such as the family home. Breaching the order is a criminal offence and can result in arrest.
An Occupation Order determines who can live in a property (or in certain parts of property), and who should be excluded from living in the property.
Both require the ‘connected persons test’ to be met (i.e. there is a specific connection between the parties involved). This includes being married, civil partners, living together or partners, relatives and having a child together.
There are also remedies available through the police and criminal courts, known as Restraining Orders and Domestic Violence Protection Orders (DVPOs).
The pilot scheme: introduction of DAPNs and DAPOs
Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs) are new measures provided for under Part 3 of the Domestic Abuse Act 2021 (DAA 2021). They will not replace existing measures that can be taken but are intended to be an alternative measure that can be used within family, criminal or civil courts.
Domestic abuse is defined in DAA 2021 as behaviour consisting of any of the following: physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; psychological, emotional, or other abuse.
A pilot scheme is currently underway in select areas of the country. The scheme has been trialled in a number of local police forces and is expected to be rolled out nationally in due course.
What Are DAPNs and DAPOs?
DAPN (Domestic Abuse Protection Notice)
A DAPN is issued by the police to a suspected perpetrator of domestic abuse, including non-physical abuse such as controlling or coercive behaviour. It provides immediate by requiring the alleged perpetrator to leave the home for up to 48 hours.
The police must have reasonable grounds to believe the alleged perpetrator has been abusive toward a person aged 16 or over with whom they are personally connected. They must also determine that issuing a DAPN is necessary to protect the individual from abuse or the risk of abuse. The alleged perpetrator must be at least 18 years old.
Breaching a DAPN allows the police to arrest the alleged perpetrator without a warrant if they have reasonable grounds for believing there is non-compliance. They can be detained for up to 24 hours and be brought before the magistrates’ court under standard criminal procedures.
DAPO (Domestic Abuse Protection Order)
A DAPO provides longer-term protection and enables the court to impose a range of conditions; this may involve barring the perpetrator from approaching a designated distance near the victim’s home or other specified locations, such as their workplace, while also mandating participation in a behaviour change program, an alcohol or substance abuse program, or a mental health assessment. The court will have the power to vary these orders.
Breaching a DAPO is a criminal offence, punishable by up to five years in prison, a fine, or both. Alternatively, breaches may be addressed as civil contempt of court.
During the pilot phase, there is no cost for DAPO applications. It is uncertain whether this will continue after a national rollout. Legal aid remains available for both reported victims and alleged perpetrators, subject to a means and merits test.
Legal test for issuing a DAPO
Under section 33 of the Domestic Abuse Act 2021, before granting a DAPO, courts must assess the following:
- Whether, on the balance of probabilities, the alleged perpetrator has been abusive and whether the order is necessary and proportionate to prevent further harm;
- The interests of any child under 18, regardless of their direct connection to the alleged perpetrator;
- The views of the protected person;
- If shared premises are involved, the perspective of any other relevant occupant; and
- If issuing a DAPO without prior notice, whether doing so is just and convenient.
Additionally, if issuing the DAPO without prior notice, the court must assess whether doing so is just and convenient.
Notably, the protected person’s consent is not required for the court to issue a DAPO.
Challenging a DAPO
The perpetrator may apply for the variation or discharge of a DAPO. When considering such an application, the court must:
- Consider input from any relevant Chief Officer of Police.
- Take into account the views of the protected person if they seek to have the order removed.
- Reassess the same factors considered when initially issuing the order, including child welfare, the protected person’s opinion, and the views of any co-occupant.
Conclusion
As DAPNs and DAPOs are trialled in multiple police forces, they may represent a shift in the UK’s approach to tackling domestic abuse. The ability to enforce immediate protective measures through DAPNs and longer-term interventions via DAPOs offers a more flexible and comprehensive framework. The coming months will provide further insight into their use within the family court, their effectiveness and how they might shape domestic abuse protection in the future.
For more information on this new scheme and protective measures available in your local area, please contact us to discuss further.
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