text stringlengths 5 5.67k |
|---|
Another was public pressure for the law to be reformed to give such women greater protection. Ratio |
Of course, it was known that physical violence was not the only form of abuse which women suffered. Ratio |
For example, in 1974 Dr Elizabeth Wilson referred to a case where the husbands constant abuse in the form of offensive and cruel denigratory remarks had already damaged his wifes psyche possibly in a more irreparable way than if he had broken her nose: Battered wives: why they are the born victims of domestic violence,... |
But, understandably, the predicament of women who were the victims of physical violence was at the forefront of demands for the law to be reformed. Ratio |
It is therefore not surprising that the term domestic violence first entered English law in the short title of the Domestic Violence and Matrimonial Proceedings Act 1976 (the 1976 Act) which derived from the Private Members Bill promoted by Miss Josephine Richardson MP. Ratio |
There can be no doubt that the main aim of Parliament in passing the legislation was to give some additional protection, by way of injunctions in the county court and the possibility of including a power of arrest in certain cases - to women, whether married or cohabiting, who were likely to suffer physical violence at... |
Section 2 did indeed refer to the other party to the relationship using violence. Ratio |
But the Act was not confined to such cases. Ratio |
As Lord Scarman noted in Davis v Johnson [1979] AC 264, 348C-E, the mischief at which section 1 of the Act was aimed (molesting) went beyond physical violence and included conduct which makes it impossible or intolerable for the other partner, or the children, to remain at home. Ratio |
When, the following year, Parliament enacted the Housing (Homeless Persons) Act 1977 (the 1977 Act), it included provisions that were designed to provide additional help to victims of violence in the home. Ratio |
On this occasion it did not refer to cases where the woman was molested. Ratio |
Parliament therefore seems to have been concentrating on the paradigm case of battered wives, women who feared physical violence understandably enough, since the new Act was imposing novel obligations on local authorities. Ratio |
More than 30 years have passed. Ratio |
The legislation has become a familiar part of the legal landscape and has been re-enacted in the Housing Act 1996 (the 1996 Act). Ratio |
The question before the Court is whether the word violence in section 177(1) and (1A) of the 1996 Act is confined to physical violence. Ratio |
At first sight it is curious that Parliament has maintained the special term domestic violence. Ratio |
Section 177(1) now applies to cases where it is probable that continuing to occupy accommodation will lead to domestic or other violence - other violence being violence from people, such as neighbours, who are not associated with the victim. STA |
Subsection (1A) then says that violence is domestic violence if it is from a person who is associated with the victim. STA |
In my view, there is no doubt that violence means the same, whether it comes from a person associated with the victim or from a third party. STA |
The form of the provision may simply reflect the way that the provision has evolved. STA |
More likely, however, the retention of the term domestic violence is intended to serve a purpose. STA |
The aim, it seems to me, may well be to ensure that the same standard is applied to violence within the home as to other violence and so to counter any suggestion that violence within the home is to be treated as being somehow of less significance than violence outside the home. STA |
Subsection (1A) makes it clear that any conduct that would count as violence outside the home counts as violence if it occurs within the home: the law does not give a discount to the perpetrator because of the domestic setting. STA |
In 1974 Dr Wilson saw that the husbands constant denigration of his wife had damaged her psyche possibly irreparably. Ratio |
The Court has not been referred to any case where a court had to consider whether such conduct would have counted as violence for the purposes of section 1(2)(b) of the 1977 Act. Ratio |
I have already made the point that cases of that kind were not the focus of Parliaments attention in enacting that provision. Ratio |
But it is common place for courts to have to consider whether circumstances, beyond those at the forefront of Parliaments consideration, may properly be held to be within the scope of a provision, having regard to its purpose. Ratio |
Similarly, cases of physical violence surely remain the main focus of section 177(1) of the 1996 Act. Ratio |
And, similarly, the question remains: does deliberate non-physical abuse which harms the other party fall within the scope of violence in that subsection, having regard to its purpose? Parliament has provided that it is not reasonable for someone to continue to occupy accommodation if it is probable that this will lead... |
So the person at risk is automatically homeless for the purposes of the 1996 Act. Ratio |
I can see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of such conduct, that may cause her psychological harm. Ratio |
I would therefore interpret violence as including such conduct and the subsection as applying in such cases. Ratio |
To conclude otherwise would be to play down the serious nature of psychological harm. Ratio |
A necessary precondition of a right to be rehoused under the homelessness legislation is that the applicant is without accommodation. Ratio |
Section 175(3) of the Housing Act 1996 as amended (the 1996 Act) provides: A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. Ratio |
Section 177(1) of the Act provides: It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him . . . Ratio |
The issue identified by the parties for the Courts determination on this appeal is: Is the concept of domestic violence in section 177(1) of the Act limited to actual physical violence or is it capable of extending to abusive psychological behaviour which could reasonably be described as violence? Ratio |
It has long been known that psychological abuse within a domestic context can cause at least as much long-term harm to the victim (most commonly the woman) as physical abuse. Ratio |
Certainly no one who has read the extensive material put before us by the Womens Aid Federation of England could fail to appreciate that fact. Ratio |
But I have nonetheless found this a much more difficult case than other members of the Court appear to have done and I cannot hide my profound doubt as to whether at any stage of their legislative history the domestic violence provisions with which we are here concerned now enacted as sections 177 and 198 of the 1996 A... |
A number of indicators to my mind point to this being Parliaments limited intention. Ratio |
One of these is the primary meaning ordinarily given to the word violence as connoting physical violence (in contrast, in the present context, to other forms of domestic abuse). Ratio |
A second pointer is the very definition of violence and domestic violence contained in both section 177 (1A) and section 198 (3) of the 1996 Act: (1A) For this purpose violence means (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is dome... |
Psychological abuse would plainly encompass threats whether or not they are likely to be carried out: it is the threats themselves which are intrinsically abusive and harmful. Ratio |
It is not generally apt to speak of a threat to carry out psychological abuse. Ratio |
Even if one postulates a threat, say, to lock someone up in their room or deprive them of all funds, the statutory definition stipulates that it is only if the threat is likely to be carried out that it constitutes violence: the threat itself, however hurtful and humiliating, unless likely to be carried out, is exclude... |
Another pointer to Parliaments intention is the fact that violence falls to be construed in the same way irrespective of whether the perpetrator is a person associated with the victim (sections 177(1A) and 178) or some other person. Ratio |
If, of course, the perpetrator is associated with the applicant, the question arising under section 177(1) is whether the applicants continued occupation of the accommodation would probably lead to domestic violence; the question arising under section 198(2)(c) being whether, if referred to another local housing author... |
If, however, the perpetrator is not associated with the applicant, the question under 177(1) is whether continued occupation of the accommodation would probably lead to violence by that person; the question under 198(2A) being whether the applicant (whom the housing authority contemplates referring to another authority... |
I do not say that psychological abuse (as opposed to actual or threatened physical violence) at the hands of a non-associated perpetrator is literally incapable of being described as violence and of justifying respectively (a) deemed homelessness leading to a section 193 duty to re-house or (b) non- referral back to th... |
I do say, however, that Parliament is unlikely to have contemplated or intended these consequences. Ratio |
Fourthly, it must be recognised that when the homelessness legislation was first introduced (by the Housing (Homeless Persons) Act 1977 - homelessness by section 1(2)(b) of the Act being deemed to exist in the case of those whose occupation of accommodation would probably lead to violence from some other person residin... |
This view, moreover, that in the homelessness context domestic violence meant physical violence, was reflected in successive statutory Codes of Guidance issued by the Secretary of State (under provisions similar to what is now section 182(1) of the 1996 Act), certainly up until the 2006 Code. Ratio |
The 1978 Code, for example, referred to fear of violence and to battered women . . . Ratio |
at risk of violent pursuit or, if they return home, at risk of further violence (paras 2.10(b) and 2.12(c)(iii)). Ratio |
The 2002 Code (issued following the 2002 amendments to the 1996 Act) refers (at para 6.18) to the required assessment of the likelihood of a threat of violence being carried out not being based solely on whether there has been actual violence in the past (emphasis added) and (at para 8.26) to the safety of the applican... |
[being] of paramount concern (emphasis added). Ratio |
A little later, not in the context of deemed homelessness but rather of priority need for accommodation because of vulnerability for some other special reason (section 189(1)(c) of the 1996 Act), the 2002 Code (at para 8.32) says: People fleeing harassment. Ratio |
In some cases severe harassment may fall short of actual violence or threats of violence likely to be carried out. Ratio |
Housing authorities should consider carefully whether applicants who have fled their home because of non-violent forms of harassment, for example verbal or psychological abuse or damage to property, are vulnerable as a result. Ratio |
There, it can readily be seen, verbal or psychological abuse is mentioned as an example of non-violent forms of harassment and contrasted with actual violence. Ratio |
True it is that from 1991 onwards the successive codes from time to time refer to violence or threats of violence including, for example, racial harassment or attacks, sexual abuse or harassment, and harassment on the grounds of religious creed. Ratio |
Invariably, however, until 2006, this was in the context not of deemed homelessness under section 177(1), but rather of whether it was reasonable for the applicant to continue to occupy his (or more generally her) accommodation, the question now arising under section 175(3) of the 1996 Act. Ratio |
This is the basic question which has arisen ever since 1986 (when the Housing Act 1985 was amended to overturn the effect of R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) in every case save when section 177(1) deems continued occupation not reasonable. Ratio |
Only in the 2006 Code (at para 8.21) did the Secretary of State first indicate his support for a wider interpretation of section 177(1): 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, vi... |
It is not, of course, suggested that this notable change in the Secretary of States Code of Guidance could directly affect the true construction of the statute: such guidance can be at most persuasive of the meaning to be given to legislative provisions. Ratio |
It is, after all, for the courts not the executive to interpret legislation. Ratio |
But it is suggested that, consistently with the living instrument, always speaking approach to statutory construction, and following the decision of the House of Lords in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, the developing perception and understanding of domestic violence now enables, indeed r... |
By the same token that the majority of the Court in Fitzpatrick had regard to changes in social habits and opinions to interpret the phrase tenants family as being capable of encompassing a same-sex partner, so too, the appellant argues, nowadays it would be wrong to continue construing domestic violence (or, indeed, t... |
Tempting though it is to accept this argument one does not, after all, like to appear old-fashioned I confess to doubts and hesitation here too. Ratio |
If one considers just why it is that domestic violence (indeed, violence generally), in contradistinction to all other circumstances, has been thought to justify a deeming provision a provision, that is, which deems it unreasonable that a probable victim of future such violence should continue to occupy his or her pres... |
With the best will in the world I find it difficult to accept that there is quite the same obvious urgency in re-housing those subject to psychological abuse, let alone that it will be possible to identify this substantially wider class of prospective victims, however precisely they may be defined, with anything like t... |
Confining the deeming provision to the victims and potential victims of physical abuse does not, of course, remove all other victims from protection. Ratio |
Rather it leaves their cases to be assessed under section 175(3). Ratio |
If, then, an applicant does come to be assessed as a victim of sufficiently severe psychological abuse to satisfy the section 175(3) test for homelessness (a process which I accept would be likely to take rather longer than a section 177(1) judgment in respect of physical abuse), then obviously he or she would have to ... |
It is, of course, true that, in section 175(3) cases generally but not in deemed cases, the housing officer is empowered by section 177(2) to have regard to the general circumstances prevailing in relation to housing in the district, so that theoretically, on the present understanding and application of the statute, a ... |
Realistically, however, I see this as only a theoretical possibility since it seems to me that section 177(2) exists essentially to deal with complaints about the quality of an applicants existing housing: the housing officer may on occasion have to decide that an applicants present accommodation, however un-ideal, mus... |
I had at one time thought that the solution to the problem raised by this case if problem there is lay in the Secretary of States order-making power under section 177(3)(a) of the 1996 Act. Ratio |
I recognise, however, that there are difficulties in the use of this power: first, that, given the Secretary of States view that the victims of psychological abuse are already covered by section 177(1), he cannot properly specify their needs as arising in other circumstances; secondly, that the use of this power could ... |
There would remain the possibility of someone being returned for re-housing to an area where, although not cohabiting with an abuser, he or she might be at risk of future psychological abuse from a non-cohabiting family member (essentially the position in Bond v Leicester City Council [2002] HLR 158, although that case... |
Certainly, I no longer see section 177(3) as the solution to this case. Ratio |
Rather the Court has no alternative but to decide whether it is indeed now right, pursuant to the Fitzpatrick principle, to give to the terms domestic violence and violence the wider meaning contended for by the appellant and both interveners. Ratio |
In taking this course we would, of course, be overturning two clear and unanimous decisions of the Court of Appeal: respectively of Mummery, Jacob and Neuberger LJJ in Danesh v Kensington and Chelsea Royal London Borough Council [2007] 1 WLR 69 and of Waller, Laws and Etherton LJJ in the present case. Ratio |
I have already indicated my very real doubts about doing so. Ratio |
At the end of the day, however, I do not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. Ratio |
I am content that the views of the majority should prevail and that the appeal should be allowed. Ratio |
The issue is simply stated. Ratio |
Child tax credit (CTC) is payable to one person only in respect of each child, even where the care of the child is shared between separated parents. Ratio |
It is (now) accepted that entitlement to CTC falls within the ambit of article 1 of the First Protocol to the European Convention on Human Rights (Protection of property): see R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311. Ratio |
It is (now) accepted that the rule discriminates indirectly against fathers, because experience shows that they are far more likely than mothers to be looking after the child for the smaller number of days in the week. Ratio |
The question, therefore, is whether this discrimination is justified or whether the refusal of CTC to a father who looks after his children for three days a week is incompatible with his convention rights. Ratio |
If it is incompatible there is a further question as to how this incompatibility can be remedied. Ratio |
The facts FAC |
The appellant father has two children, a son born on 7 June 1998, and a daughter born on 6 May 1999. FAC |
We are concerned with the period from 12 January 2004 until December 2005. FAC |
During that time, they lived with their mother but had very extensive contact with their father, who looked after them for at least three days a week. FAC |
A court order dated 8 November 2004 sets out the precise arrangements determined after a contested hearing between the parents. FAC |
In effect, this provided for the father to have the children for three full weekends in every four and on Thursdays in the fourth week and for half of all school holidays. FAC |
In other cases, such a level of shared care might well be reflected in a shared residence order rather than in an order for residence and contact. FAC |
But the labels attached to the arrangements are immaterial for the purpose of the present issue. FAC |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.