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In 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, defined for this purpose as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women . . . Ratio |
Nationally, in 1993 the House of Commons Home Affairs Committee in its Report on Domestic Violence adopted the definition any form of physical, sexual or emotional abuse which takes place within the context of a close relationship (Session 1992-93, Third Report, HC 245-I, para 5). Ratio |
The Home Affairs Committee report used two reports as the basis for its inquiry: the Report on Domestic Violence of a national inter-agency working party convened by Victim Support (1992) and the Report of the Law Commission on Domestic Violence and Occupation of the Family Home (1992, Law Com No 207). Ratio |
The Law Commission gave this explanation of domestic violence, at para 2.3: The term violence itself is often used in two senses. Ratio |
In its narrower meaning it describes the use or threat of physical force against a victim in the form of an assault or battery. Ratio |
But in the context of the family, there is also a wider meaning which extends to abuse beyond the more typical instances of physical assaults to include any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect upon the health and well-being of the victim. Ratio |
The recommendations made in the Law Commissions Report were embodied in the Domestic Violence and Occupation of the Family Home Bill which passed through most of its Parliamentary stages in the session 1994 1995 before falling at the last hurdle. Ratio |
The same clauses were reintroduced, with immaterial amendments, in the Family Law Bill 1995 1996 and became Part IV of the Family Law Act 1996. Ratio |
It cannot be a coincidence that the definition of an associated person in section 178 of the Housing Act 1996 bears a very close resemblance to the definition of an associated person for the purpose of occupation and non- molestation orders under the Family Law Act 1996, in section 62(3) to (6) of that Act. Ratio |
It will be recalled that the Housing Act 1996 had shifted the focus, away from the presence of the perpetrator in the same accommodation as the victim, to the nature of the relationship between them. Ratio |
These are strong indications of joined up thinking on the part of the legislators. Ratio |
The Home Affairs Committee had also made the link between the criminal and family law remedies, with which it was concerned, and the housing law remedies, which were then the concern of the Department of the Environment; thus, it recommended that local authorities put an end to the nonsense where a victim fleeing domes... |
In fact, the Department of the Environment had already gone some way towards meeting the first point, as the 1991 version of the Code of Guidance for Local Authorities on Homelessness had stated (para 7.11) that authorities should not automatically treat an applicant as intentionally homeless because she had failed to ... |
The Department of the Environments Relationship Breakdown Working Party (see para 15 above) was well aware of the Law Commissions Report: not only was the Law Commission represented upon it but the Working Party recommended implementation of the Commissions two most relevant recommendations. Ratio |
All of this indicates a consciousness in 1996 of the need to align housing, homelessness and family law remedies for victims of domestic violence, so that they could have a genuine choice between whether to stay and whether to go and the local authority or social landlord would not be obliged to continue to provide fam... |
There was also an explicit acknowledgement in the report which led to the Family Law Act 1996 and by the Home Affairs Committee that violence could have a wider meaning than physical contact. Ratio |
In my view, therefore, whatever may have been the original meaning in 1977 (and, for that matter, in the Domestic Proceedings and Magistrates Courts Act 1978), by the time of the 1996 Act the understanding of domestic violence had moved on from a narrow focus upon battered wives and physical contact. Ratio |
But if I am wrong about that, there is no doubt that it has moved on now. Ratio |
In March 2005, the Home Office published Domestic Violence: A National Report, in which it was stated at para 10: To support delivery across government and its agencies through a common understanding of domestic violence, we now have a common definition. Ratio |
This follows the definition already used by the Association of Chief Police Officers, and is: Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. Rat... |
That definition, or something very close to it, has been adopted by many official and governmental bodies, including the Association of Chief Police Officers: Guidance on Investigating Domestic Abuse (2008); the Crown Prosecution Service Policy for Prosecuting Cases of Domestic Violence (2010); the Ministry of Justice,... |
Indeed, it is cited in Hounslows own leaflet, Domestic Violence: What it is and how you can get help (2009), which goes on to explain: It is rarely a one off incident and it is not only about being physically or sexually abused, you may be subject to more subtle attacks, such as constant breaking of trust, isolation, p... |
Emotional abuse is just as serious and damaging; many survivors will carry the emotional scars long after the physical injuries have healed. Ratio |
The 2006 version of the Homelessness Code of Guidance for Local Authorities is explicit at para 8.21: The Secretary of State considers that the term violence should not be given a restrictive meaning, and that domestic violence should be understood to include threatening behaviour, violence or abuse (psychological, phy... |
This was new to the 2006 Code. Ratio |
The fourth reason given by the Court of Appeal in Danesh, at para 18, was that various passages in the previous, 2002, Code had given a different impression, for example by comparing severe harassment with actual violence (para 8.32). Ratio |
However, it is not for government and official bodies to interpret the meaning of the words which Parliament has used. Ratio |
That role lies with the courts. Ratio |
And the courts recognise that, where Parliament uses a word such as violence, the factual circumstances to which it applies can develop and change over the years. Ratio |
There are, as Lord Steyn pointed out in R v Ireland [1998] AC 147, at p 158, statutes where the correct approach is to construe them as if one were interpreting it the day after it was passed. Ratio |
The House went on in that case to construe bodily harm in the Offences Against the Person Act 1861 in the light of our current understanding of psychological as well as physical harm. Ratio |
The third reason given by the Court of Appeal in Danesh was that it was impermissible to construe the meaning of one phrase by reference to the meaning of another. Ratio |
This I accept. Ratio |
However, as Lord Clyde observed in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, at p 49, which was concerned with whether same sex partners could be members of one anothers family for the purpose of succession to Rent Act tenancies, it is a relatively rare category of cases where Parliament intended t... |
In other cases, as Lord Slynn of Hadley explained at p 35: It is not an answer to the problem to assume . . . Ratio |
that if in 1920 people had been asked whether one person was a member of another same-sex persons family the answer would have been No. That is not the right question. Ratio |
The first question is what were the characteristics of a family in the 1920 Act and the second whether two same-sex partners can satisfy those characteristics so as today to fall within the word family. Ratio |
An alternative question is whether the word family in the 1920 Act has to be updated so as to be capable of including persons who today would be regarded as being of each others family, whatever might have been said in 1920: see R v Ireland [1998] AC 147, 158, per Lord Steyn; Bennion, Statutory Interpretation, 3rd ed (... |
Violence is a word very similar to the word family. Ratio |
It is not a term of article It is capable of bearing several meanings and applying to many different types of behaviour. Ratio |
These can change and develop over time. Ratio |
There is no comprehensive definition of the kind of conduct which it involves in the Housing Act 1996: the definition is directed towards the people involved. Ratio |
The essential question, as it was in Fitzpatrick, is whether an updated meaning is consistent with the statutory purpose in that case providing a secure home for those who share their lives together. Ratio |
In this case the purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. Ratio |
A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. Ratio |
That being the case, it seems clear to me that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on. Ratio |
The purpose of the legislation would be achieved if the term domestic violence were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, suitably adapted to the forward-look... |
That conclusion is consistent with the decision of the Court of Appeal in AN (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 757. Ratio |
This was concerned with the meaning of domestic violence in para 289A of the Immigration Rules, which stipulates the requirements to be met by a person admitted as the spouse or civil partner of a person present or settled here who is the victim of domestic violence which has caused the relationship permanently to brea... |
Richards LJ quoted the definitions in the 1993 Home Affairs Committee Report, the 2005 National Report (repeated in a more recent Report of the Home Affairs Committee, Domestic Violence, Forced Marriage and Honour-Based Violence, 2007-08, 6th Report, para 4), the guidance given by the UK Border Agency, and the Presiden... |
He pointed out that The general thrust of all those definitions is much the same (para 23) and accepted that the term was not limited to physical violence, although it must reach some minimum level of seriousness, which will depend upon context and particular circumstances (para 24). Ratio |
It remains to be discussed whether giving the words the meaning given them by the President of the Family Division would be inconsistent with anything in the statutory language or purpose. Ratio |
The statutory language Ratio |
The second reason given in Danesh for preferring a narrow construction was that, in both section 177(1) and section 198(3), violence is defined as violence or threats of violence which are likely to be carried out: para 16. Ratio |
If the concept of violence already included conduct which puts a person in fear of physical violence there would be no need to refer to threats at all. Ratio |
I am not convinced of this. Ratio |
For one thing, there are some forms of conduct which undoubtedly put a person in fear of violence but which would not necessarily be described as threats. Ratio |
Silent phone calls, heavy breathing, the sorts of stalking behaviours which were the subject matter of Bond v Leicester City Council [2001] EWCA Civ 1544, [2002] HLR 158 and R v Ireland [1998] AC 147, can all put the victim in very real (and justified) fear of violence in the narrow sense. Ratio |
They should be covered by the concept of violence. Ratio |
More importantly, if the concept of violence includes other sorts of harmful or abusive behaviour, then the reference to threats is not redundant. Ratio |
Locking a person (including a child) within the home, or depriving a person of food or of the money to buy food, are not uncommon examples of the sort of abusive behaviour which is now recognised as domestic violence. Ratio |
There is nothing redundant in a provision which refers to threats of such behaviour which are likely to be carried out. Ratio |
In this Court, Mr Drabble urged an alternative solution upon us: that if there were forms of ill-treatment falling short of physical violence which ought to be included within the pass-porting provision in section 177(1), the Secretary of State could use the power in section 177(3)(a) to include them. ARG |
Mr Maurici, on behalf of the Secretary of State, explained that the Secretary of State has not done so because in his view the concept of violence already bears the wider meaning for which the appellant contends. ARG |
There is the further objection to this solution, that there is no equivalent power in section 198, so that a person might be accepted as homeless under section 177(1) but could then be referred to a district where she would face exactly the same risks. ARG |
There may also be a concern that an expanded definition is setting the threshold too low. Ratio |
The advantage of the definition adopted by the President of the Family Division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour. Ratio |
It has been recognised for a long time now that it is dangerous to ignore what may appear to some to be relatively trivial forms of physical violence. Ratio |
In the domestic context it is common for assaults to escalate from what seems trivial at first. Ratio |
Once over the hurdle of striking the first blow, apologising and making up, some people find it much easier to strike the second, and the third, and go on and on. Ratio |
But of course, that is not every case. Ratio |
Isolated or minor acts of physical violence in the past will not necessarily give rise to a probability of their happening again in the future. Ratio |
This is the limiting factor. Ratio |
Sections 177 and 198 are concerned with future risk, not with the past. Ratio |
The introduction in 2002 of other violence into a statute which was previously concerned only with domestic violence also raises questions. Ratio |
They are readily answered, if I am right that the concept of domestic violence in 1996 was already wider than physical contact. Ratio |
As Miss Nathalie Lieven QC for the appellant points out, the introduction of other violence in 2002 cannot possibly have been intended to cut down the meaning which the statute already had. Ratio |
However, if the understanding of the conduct to which the word applies has moved on, the question of whether this also applies to other violence does not arise on the facts of this case, and so it is unnecessary for us to express a concluded view. Ratio |
Reading the statute as it now stands, there are arguments on either side. Ratio |
On the one hand, if violence has the same meaning in both domestic violence and other violence, there was no need to retain the separate concept of domestic violence, together with the complicated definition of associated persons in section 178. Ratio |
A person who was at risk of any violence if she stayed in or returned to the property or the locality would be protected. Ratio |
Retaining them as separate concepts suggests that domestic violence is limited by the relationship between the victim and the perpetrator, rather than by the nature of the conduct involved. Ratio |
Other violence, having no such limitation and lacking the connotations of an intimate or familial relationship, might relate to a narrower set of behaviours. Ratio |
On the other hand, providing in sections 177(1A) and 198(3) that violence is domestic violence suggests that violence has a constant meaning. Ratio |
Hence, I would incline towards the view that it does. Ratio |
Nor would that be surprising. Ratio |
People who are at risk of intimidating or harmful behaviour from their near neighbours are equally worthy of protection as are those who run the same risk from their relations. Ratio |
But it may be less likely that they will suffer harm as a result of the abusive behaviour of their neighbours than it is in the domestic context. Ratio |
In practice, the threshold of seriousness may be higher. Ratio |
Conclusion Ratio |
As the housing officers and review panel adopted a narrow view of domestic violence in this case, it is agreed that it must be remitted to the authority to be decided again. Ratio |
I accept that these are not easy decisions and will involve officers in some difficult judgments. Ratio |
But these are no more intrinsically difficult than many of the other judgments that they have to make: for example, as to the circumstances in which it is reasonable to continue to occupy the accommodation; as to whether a person has rendered herself intentionally homeless; and as to the suitability of accommodation pr... |
Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality... |
The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved. Ratio |
I would therefore allow this appeal and remit the case to be decided by the local housing authority. RPC |
I agree that the appeal should be allowed for the reasons given by Lady Hale. Ratio |
I add a few comments of my own, since the point is not free from difficulty and we are differing from two decisions of the Court of Appeal. Ratio |
The term domestic violence rose to prominence in the 1970s in connexion with battered wives women who, whether married or not, suffered violence at the hands of their husband or partner. Ratio |
One reaction was to set up refuges. Ratio |
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