KBG Chambers KBG Chambers KBG Chambers KBG Chambers

News

You are Not Alone; domestic abuse under Coronavirus Lockdown

27th April 2020

You are Not Alone; domestic abuse under Coronavirus Lockdown

In over 14 years of having represented survivors of domestic abuse, assisting them to obtain injunctions against their abusive partners, there has never been a more worrying time for those experiencing abuse and intimidation within the home.

Refuge, the charity running the National Domestic Abuse Helpline reported on 9th April 2020, that following the earlier press release reporting statistics that during the early part of lockdown calls to the helpline rose by 25% which received national media coverage, calls to their helpline then rose by 120%, more than doubling overnight, and traffic to their website rose by 700% compared with the previous day.

The government response from the Home Office was updated on 14th April 2020

https://www.gov.uk/government/publications/coronavirus-covid-19-and-domestic-abuse/coronavirus-covid-19-support-for-victims-of-domestic-abuse

Including the following statement:-

The household isolation instruction as a result of coronavirus does not apply if you need to leave your home to escape domestic abuse.

This page signposts individuals to contact the police and national charities supporting victims and survivors of abuse, it does not change the position that the legal protection from abuse remains to apply for and obtain a domestic abuse injunction in the family court; a non-molestation order is a court order to prevent an abuser from using or threatening violence, intimidating, harassing, or pestering and an occupation order is a court order that controls who can live in the family home; the orders can sometimes also exclude the abuser from the surrounding area. Breach of a non-molestation order is a criminal offence, allowing for a robust police response to a complaint that the court order has been broken.

https://www.gov.uk/guidance/applying-for-a-domestic-violence-family-law-act-injunction-for-unrepresented-applicants

There is an online FL401 application form portal, and advice that hearings take place by telephone, however this is a difficult process to navigate. And despite the good work of legal bodies and charities in this field, there has not been a joined up response to the implications of the coronavirus lockdown crisis.

Working regularly in this court arena, I worry about the countless victims and the urge to help is strong; this is my advice for those who need legal protection from domestic abuse.

1. In a crisis situation consider carefully the advice of Victim Support regarding staying safe:-

https://www.victimsupport.org.uk/crime-info/types-crime/domestic-abuse/living-domestic-abuse-or-coercive-control-during-coronavirus

Notably counselling that at a crisis point “Do not threaten to leave” without help in place from the police or a domestic violence charity. Ring 999 if you need to. Dialling 55 on the 999 call will transfer your call immediately from the operator to the police. Keep your phone charged at all times.

2. Try to access support: -

This may be from a domestic abuse charity, your GP over the telephone or by logging a complaint with the police. Keep a record of incidents if possible. This is in part to build an evidence base for the court, and to qualify for legal aid, see 3 below. There are a range of ways to communicate with charities:-

  • The national domestic abuse helpline (24hours) 08082000247 also offers a web form where you can request a call back
  • Women’s Aid has a Live Chat available 10am- 2pm, Monday to Friday
  • Victim Support offers a Live Chat with extended hours, 7 days per week

I understand that many individuals will be having their devices constantly monitored in the home, it is important to select “private browsing” from the web browser. Also to regularly delete call and browsing history. Send videos and recordings of abuse to a trusted friend or family member before deleting them.

Leaving the home on foot or in the car in order to make calls is in my view clearly allowed by the rules on lockdown; it is to escape the risk of injury or harm and is referred to in the published guidance.

3. Legal aid is available

Legal aid is available to help you obtain protection in the family courts; family law solicitors remain open and can process applications for legal aid quickly. The rules for the types of evidence required to support an application for free legal representation have been revised by the government as of 9th April 2020.

https://www.gov.uk/guidance/coronavirus-covid-19-working-with-clients

Find a family legal aid lawyer

https://find-legal-advice.justice.gov.uk/

Finding Legal Options for Women Survivors (FLOWS) is a legal support service which can provide expert advicee over email and phone. They areavailable by phone: 0207 745 7707 and email flows@rcjadvice.org.uk

If legal aid is not open to you, and you cannot afford legal representation then the CourtNav portal designed in conjunction with RCJ Citizens Advice is available online here. Access to the service first requires registration.

4.The perpetrator or abuser does not need to know about the application to the court for an order.

Both applications for Non-molestation Orders and Occupation Orders under the Family Law Act 1996 may be made ex parte or without notice to the respondent pursuant to section 45. This means you can get an order without the abuser first knowing that you are going to court to get one. In the current climate, I cannot imagine any court refusing to make an initial order on a without notice basis. The criteria in section 45 FLA 1996 are clearly fulfilled and this approach is in accordance with the President’s Guidance of January 2017 https://www.judiciary.uk/wp-content/uploads/2017/01/pfd-practice-guidance-ex-parte-orders.pdf

It is important to highlight that whilst a return date, or a hearing at which the perpetrator is invited to attend should be listed by telephone 14 days from the first without notice hearing, the orders on first application may be made for a much longer duration of 6 or 12 months and should, in my view, not be due to expire on the return date.

5.Ask for a robust response from the court.

I am wary of the advice from the National Centre for Domestic Violence, who have advised victims they can set up Court-protected safe zones within their own homes. NCDV says protective injunctions called Non-molestation Orders (NMOs), which the organisation already helps thousands to secure every year, may be used to demarcate an area which is out-of-bounds to their abusers. I do not understand how an order restricting the perpetrator or victim to part of the home has the effect of providing protection from abuse and violence and I would be extremely concerned if such an order was made in a case where either children are present or, where there have been allegations of physical violence or threats thereof. The courts need, in my view, to take a robust stance, applicants do not access the courts lightly, and they need real protection including, Occupation Orders with powers of arrest attached.

6.Ask for alternative service by e-mail, WhatsApp or Facebook Messenger (private messages)

Rule 10.6 FPR 2010 requires personal service of the Court Orders and Application but makes it clear that personal service should not be by the applicant him or herself. The court may be requested under the rules to effect the personal service of the documents, and this should be the case for all applicants acting in person or a solicitor representing the applicant may use the service of a process server. In any event service is likely to be the most difficult part under the coronavirus lockdown. Can the court give you a window for service to take place? Can you be given permission to leave the property whilst service takes place and be permitted to return upon the Respondent abuser leaving the home? These are questions for the courts that have to be carefully addressed and the vulnerability of the applicants highlighted.

These difficulties drive me to the conclusion that there will be cases where it is necessary to apply for alternative service, by e-mail for example. FPR 2010 Rule 6.35 allows the court to authorise an alternative method for service. This rule is expressly referred to in Rule 10.3 regarding service of applications under Part IV of the Family Law Act 1996. I view the rules as permitting for alternative methods of service to be sanctioned for without notice Court Orders and Applications. The applicant or their legal representative can provide screenshot photograph evidence of the court documents being served on the respondent, which may then form part of a certificate of service.

It is persuasive that the National Centre for Domestic Violence, has called upon all Family and County Courts in England to bring forward their plans to issue electronic Court Orders immediately.

And finally a message of support to those currently trapped - domestic abuse and coercive control can and does happen to anyone. It's not fair and it's not your fault. You don’t deserve to live in fear of the consequences of your thoughts, feelings and actions. You are not alone. You have the strength to survive this.

 

Jenny Kumeat

KBG Chambers

jkumeta@kbgchambers.co.uk

 21st April 2020

Other useful link and contacts:-

https://childlawadvice.org.uk/information-pages/domestic-abuse

National 24h Domestic abuse Helpline: 0808 2000 247 
Victim Support 24-hour Supportline: 0808 168 9111 
Men’s Advice Line: 0808 801 0327 or email: info@mensadviceline.org.uk
LGBT DV Helpline: 0300 999 5428 or email: help@galop.org.uk
Childline: 0800 1111

« Back to news

You are Not Alone; domestic abuse under Coronavirus Lockdown