Family Law

Lucy Crompton, Senior Lecturer, Staffordshire University:

The pilot scheme for Domestic Violence Protection Notices (DVPNs) and Orders (DVPOs) ended in the summer of 2012. At the time of writing, the powers are still available in the pilot areas and the Government's report is awaited. It is clear from various Government websites that these new remedies are intended to provide emergency protection to victims of domestic violence (see for example https://www.gov.uk/domestic-violence-and-abuse). As Vanessa Bettinson has succinctly put it in another context, there is a need ‘to ensure that, in the haste to afford greater protection to victims, balance is achieved through the adequate observance of the perpetrator's human rights' (V Bettinson, ‘Restraining orders following an acquittal in domestic violence cases: securing greater victim safety?' [2012] JCL 512 at p 522). This is essential to ensure that the exercise of the remedy will survive any human rights challenges by suspects.

Little thought seems to have been given to the practical application of human rights to DVPN/Os; as piloted, the new remedies are vulnerable to challenge on several fronts.  In particular, this article will argue that the criminal standard of proof should apply in deciding whether to make a DVPO, although this decision has been made on the balance of probabilities during the pilot scheme. The remand provisions are also cause for great concern, with the potential for a suspect to be remanded in custody for three weeks pending medical evidence following an alleged breach, with no criminal charge and no finding of fact by a civil court. Even where any interference with the suspect's human rights appears likely to be proportionate, there are concerns about the transparency and accountability of the human rights balance by the senior police officer making a DVPN or the magistrate making a DVPO (and the extent to which this balance is actually performed at all).

The full version of this article appears in the December 2013 issue of Family Law.