| Trigger warning: This article discusses domestic violence and abuse from an information and resource perspective. |
As we approach the 16 Days of Action Against Domestic Violence, commencing on 25 November, a global campaign aimed at raising awareness and taking action to end domestic violence, in this article we reflect on the protections available in England and Wales.
Domestic abuse affects those from all walks of life, regardless of gender, age, wealth or socioeconomic status, and can have devastating consequences on victims, survivors, their families and their communities. In the UK it's a widespread issue that not only impacts the immediate safety and wellbeing of the victim but also has long-term effects on those who have escaped domestic abuse, on children and the family unit as a whole.
For those experiencing domestic abuse, understanding the legal protections available and the role of family law in securing safety and justice is critical. Family lawyers play a key role in guiding domestic abuse survivors and victims through the legal process, ensuring that their rights and those of their children are safeguarded.
In the UK domestic abuse has a wide legal definition and covers abusive behaviour of an individual towards someone they are personally connected to, i.e. in an intimate personal relationship with, share a child with or are related to. A person’s behaviour is abusive if it consists of any of the following: physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, and/ or economic, psychological, or emotional abuse. The law doesn't differentiate between a single incident or a course of conduct - whether it happens once or several times, the behaviour is still domestic abuse.
The UK family courts offer several remedies to those experiencing domestic abuse. The key legal protections include non-molestation orders, occupation orders and child arrangement orders.
These are intended to protect victims from harassment or abuse by preventing the abuser from engaging in threatening, violent or intimidating behaviour. A non-molestation order can restrict communication and proximity to the victim. They can also prohibit the abuser from indirectly harassing the victim, e.g. by asking another person to contact them.
These orders regulate who can live in the family home. They can be used to exclude the abuser from the home, providing much needed physical safety for the effected partner and any children of the family.
In cases where children are involved, the court takes particular care to ensure their safety and wellbeing. If a parent is abusive, the court may restrict or supervise their contact with the children to ensure a safe environment while allegations are properly investigated. Legal advisors work closely with the courts to ensure that any arrangements made reflect the best interests of the children. Other professionals such as social workers, health visitors, the police, Children and Family Court Advisory and Support Service (Cafcass), and the child’s school may also be consulted.
In urgent situations, one, or a combination, of the above orders can be applied for on a without notice basis which means the abuser will not be notified in advance. This is often crucial when immediate safety is at risk.
When domestic abuse occurs within a family, any response must go beyond the immediate crisis to consider the long term impact on the family dynamic. The legal system tries to ensure that decisions made within the legal framework promote healing and do not cause further harm, especially to the children.
Children exposed to domestic abuse whether directly or as witnesses, often suffer emotional and psychological harm. We must address not only the immediate safety of the child but also the long term impacts of exposure to abuse. The courts consider this when making child arrangements orders, ensuring that any parental contact is safe and in the child’s best interests. Outside of the legal process, you can consider engaging in child focussed therapy with your child or if appropriate, arrange for them to see a child therapist alone. The child’s therapist can report back to the court and give evidence at hearings around the child’s progress and whether any increase or change in contact is recommended.
In some cases, the courts must navigate the difficult terrain of balancing a parent’s right to see their children with the need to protect the children from further harm. In these cases, lawyers and other professionals work closely with the court to assess the risks and may seek supervised visitation or other arrangements that prioritise the child’s welfare. While having both parents involved in a child’s life is important to their development, the child’s safety must come first above all else. Even just facilitating or supervising contact can be triggering and emotionally harmful to someone who has experienced abuse from their coparent and the court can take this into consideration also.
Since the reform of divorce law brought about ‘no-fault’ divorce, conduct of parties is less relevant on finances and comes with a very high threshold if it is referred to, but it can still be raised in limited cases. To raise conduct as a factor that will affect the financial split ordered by the court is a complex legal argument that will vary on a case by case basis.
There are other types of conduct, such as domestic abuse, which can inhibit the affected party’s ability to fully and effectively participate in proceedings. These effects aren't always obvious and don't always have a direct financial consequence. Such effects can include a lack of knowledge or understanding of the family’s finances as a result of financial abuse, not wanting to attend court in person for fear of physical proximity to the other party, and an inability to obtain legal representation if the other party is withholding interim maintenance. To address these barriers the court can make orders such as maintenance pending suit, or participation directions such as allowing one party to appear remotely or give their evidence behind a screen, and orders for disclosure of financial information.
While it's difficult to raise domestic abuse or any conduct as a factor that will affect the overall outcome, domestic abuse will not go ignored by the court especially where it impacts the victim’s ability to engage in the proceedings.
In certain circumstances, mediation may be explored as a method for resolving family disputes. However, this is typically not recommended where domestic abuse is involved due to the power imbalance between the victim and abuser. In cases of domestic abuse, it's important to ensure that any resolution process, whether through the courts or alternative means, provides a fair outcome for the victim and is safe for all parties involved.
Despite the protections offered under UK family law, many victims of domestic abuse face barriers when seeking help. These barriers may include financial dependence on the abuser, fear of retaliation, or concern about disrupting family life, especially where children are involved. As family lawyers, we not only provide legal counsel but often act as a bridge to support services, ensuring that our clients can access the resources they need to rebuild their lives. All conversations and correspondence with your lawyer is confidential and cannot be relayed to your partner or family members without your permission.
As with any framework, the protections outlined above are also open to misuse and, if not carefully defended, can be used as a tool by the abuser to perpetuate further abuse. Non-molestation orders can heavily restrict how a person can communicate with their ex-partner and even geographically limit where they are allowed to go. Spurious applications are sometimes made to distract the other party from the main proceedings and spread limited resources even thinner. If granted, they can also be referred to in an attempt to discredit the other party and make inferences about their character. It's important that spurious applications are robustly defended as non-molestation orders can be incredibly onerous.
Family law plays a critical role in protecting victims of domestic abuse ensuring that they have access to the legal tools necessary to protect themselves and their families. At the same time, we must carefully consider the broader implications of legal decisions on the family, particularly the impact on children. With a compassionate approach, our family team help clients navigate a complex and often emotional legal landscape, promoting long term safety and healing. We support high-net-worth clients with obtaining such protection or defending spurious claims.
If you or someone you know is experiencing domestic abuse, there are several organisations that can help. The National Domestic Abuse Helpline (0808 2000 247) provides 24/7 support, while Women’s Aid, Refuge and SafeLives offer additional assistance including refuge services and emotional support. Victims of domestic abuse may also be entitled to legal aid.
If you require assistance with applying for one of the above orders and you aren't eligible for legal aid or you are defending such an application, get in touch with our family team for a confidential chat about the options available to you.
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