Coinciding with the United Nation's 16 Days of Activism against Gender-based Violence, the Government has announced the start of the Pilot for Domestic Abuse Protection Orders (DAPOs) in Greater Manchester, Croydon, Sutton, Bromley and with the British Transport Police. Will these new orders genuinely provide better protection for survivors of abuse, or simply add confusion as to the options available?
Domestic Abuse Protection Orders
The Domestic Abuse Act 2021 created DAPOs to replace Domestic Violence Protection Orders (DVPOs). DVPOs could be obtained by the police from the magistrates court to, for example, keep a perpetrator of abuse from returning to a family home, but were limited to 28 days. Anecdotally, it seems they have not been widely used and many survivors of abuse report that the police have instead told them to apply to the family court for an injunctive order, such as a non-molestation order.
The new DAPOs extend the scope of the orders that may be obtained and the persons who may obtain them. The new orders:
- can be obtained by the police in the magistrates courts or by victims or third parties in the family court, which it is hoped will provide greater flexibility and can streamline matters where, for example, proceedings are already ongoing between the survivor and perpetrator of abuse in the family courts. The intention behind having third parties able to apply is in part to reduce the pressure on the survivor of abuse. Applications by a third party would, however, require permission of the court. Orders could also be made of the court's own motion in criminal, family or civil proceedings in the county court;
- can be of flexible duration. This makes the orders much more attractive than the old DVPOs , which, being limited to 28 days, were only ever capable of providing some brief breathing space, rather than being a longer-term arrangement;
- can include requirements such as preventing the perpetrator from attending the applicant's home, communicating with them or attending their place of work;
- permit the court to impose positive requirements on the respondent to the order including that they attend a behaviour change programme or are subject to a curfew and electronic tagging. This would be the first time that the power to order electronic monitoring is available to the family court.
Breach of a DAPO will be a criminal offence, with a maximum penalty of up to five years imprisonment. Breach can alternatively be dealt with as a civil contempt of court.
DAPOs – the future?
It is understood that the intention of the new DAPO is that, in due course, it would replace the currently available non-molestation order, available from the family court. However, a DAPO may only be made against a perpetrator aged 18 or over, where the victim of abuse is aged 16 or over. At present, a non-molestation order application may be made by a person under the age of 16 with the court's permission. There is no minimum age limit in the Family Law Act 1996 in respect of the person against whom a non-molestation order can be made.
In addition, a non-molestation order can specify that the respondent is prohibited from molesting a "relevant child" – which covers, for example, children of the family. There is no such power to make a DAPO directly in favour of a child. With figures from the World Health Organisation showing that, among adolescent girls who have been in a relationship, nearly a quarter (24%) will have experienced physical and/or sexual intimate partner violence by the time they turn 20, there is a risk that replacement of non-molestation orders with DAPOs (in their current form) may leave a key group of victims without sufficient protection.
The current alternative is to maintain both non-molestation orders and DAPOs. But there is a risk that this may lead to confusion – for example, the court determining whether a DAPO should be made needs to be satisfied that "on the balance of probabilities" the perpetrator has been abusive whereas upon deciding whether to make a non-molestation order, the Family Law Act 1996 simply requires it to consider "all the circumstances" including the need to secure the health, safety and well-being of the applicant and any relevant child (albeit case law has expanded upon this to state that there must be "evidence of" molestation). Is there a risk that courts will apply different tests when deciding whether to grant the different types of order?
In practice, courts have tended to take a practical approach to protecting the survivors of abuse and it is anticipated they will continue to do so with DAPOs. While the ability for third parties to apply for orders and the wider powers available to the court are to be welcomed, care will need to be taken to ensure that younger survivors of abuse continue to be fully protected.