Presentation on theme: "SAFEGUARDING CONFERENCE Legal update: Care Act MCA NICE guidance on DV Forced Marriage Female Genital Mutilation Claire’s law Traditional legal remedies."— Presentation transcript:
SAFEGUARDING CONFERENCE Legal update: Care Act MCA NICE guidance on DV Forced Marriage Female Genital Mutilation Claire’s law Traditional legal remedies DVPNs/DVPOs Children and Families Act Kye Herbert Barrister, Leicester City Council
Domestic violence / Domestic abuse: the new definition Domestic violence and abuse: new definition The cross-government definition of domestic violence and abuse is: any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological physical sexual financial emotional Controlling behaviour Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. This is not a legal definition but a policy definition adopted by government to inform its policies
Domestic and sexual violence: the statistics Domestic and sexual violence is often hidden away behind closed doors and the victim suffers in silence. The latest figures published by the Office for National Statistics (“ONS) that provide a detailed breakdown in respect of domestic abuse date back to the period 2012 to 2013. In this dataset it is estimated that:- – around 1.2 million women suffered domestic abuse; and – over 330,000 women were sexually assaulted. A 2007 study revealed that up to 20,000 women in this country may be at risk of Female Genital Mutilation.
1.Wellbeing 2. Safeguarding Care Act: impact on safeguarding
Wellbeing promotion Overarching principle of the entire Care Act is - ‘individual well-being’ S1
New in law Safeguarding Board – currently in place, now regulated by law New duty on local authorities – the duty to ‘make enquiries or ensure others do so’ 42Enquiry by local authority (1)This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)— (a)has needs for care and support (whether or not the authority is meeting any of those needs), (b)is experiencing, or is at risk of, abuse or neglect, and (c)as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it. (2)The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom. (3)“Abuse” includes financial abuse; and for that purpose “financial abuse” includes— (a)having money or other property stolen, (b)being defrauded, (c)being put under pressure in relation to money or other property, and (d)having money or other property misused. Similar to section 47 CA 1989 in respect of children But NB - No power of entry – risk? How to satisfy duty to enquire? Clearly there will need to be MULTI-AGENCY WORKING with the police. NB also Multi-agency public protection arrangements (MAPPA) Multi Agency Risk Assessment conference Safeguarding s.42-47 & s.68
Safeguarding: key principles Six key principles underpin all adult safeguarding work 1.Empowerment – Personalisation and the presumption of person-led decisions and informed consent. 2. Prevention – It is better to take action before harm occurs. 3. Protection – Support and representation for those in greatest need. 4. Proportionality – Proportionate and least intrusive response appropriate to the risk presented. 5. Partnership – Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse. 6. Accountability – Accountability and transparency in delivering safeguarding.
Statutory guidance on adult safeguarding “The local authority’s safeguarding role Multi-agency working and cooperation Local authorities must cooperate with each of their relevant partners, and those partners must cooperate with the local authority, in order to protect adults with care and support needs experiencing or at risk of abuse or neglect. Relevant partners of a local authority include any other local authority with which they agree it would be appropriate to co-operate (e.g. neighbouring councils with who they provide joint shared services) and the following agencies or bodies who operate within the local authority’s area including: NHS England; Clinical Commissioning Groups; NHS trusts and NHS Foundation Trusts; job centres; the Police; prisons; probation services. The six principles that underpin adult safeguarding (see above) apply to all sectors and settings including care and support services, social work, healthcare, welfare, housing providers and the police. The principles should inform the ways in which professionals and other staff work with people at risk of abuse or neglect. The principles can also help Safeguarding Adults Boards (SABs), and organisations more widely, by using them to examine and improve their local arrangements.”
NICE – Guidance on DV awareness in multi-agency working Guidance for Health Professionals can be found at: http://www.nice.org.uk/guidance/ph50/chapter/recommendations http://www.nice.org.uk/guidance/ph50/chapter/recommendations There is also a slick graphical site with the same information: http://pathways.nice.org.uk/pathways/domestic-violence-and-abuse http://pathways.nice.org.uk/pathways/domestic-violence-and-abuse This recommends partnership working within the local safeguarding adults framework
MAPPA MAPPA - Multi Agency Public Protection Arrangements – likely to be commenced by police /probation as release of approaches What is MAPPA? MAPPA are a set of arrangements to manage the risk posed by certain sexual and violent offenders. They bring together the Police, Probation and Prison Services into what is known as the MAPPA Responsible Authority. A number of other agencies are under a legal duty to co-operate with the Responsible authority. These include: Children’s Services, Adult Social Services, Health Trusts and Authorities, Youth Offending Teams, local housing authorities and certain registered social landlords, Job centre Plus, and electronic monitoring providers. The purposes of MAPPA are: To ensure more comprehensive risk assessments are completed, taking advantage of co-ordinated information sharing across the agencies; and To direct the available resources to best protect the public from serious harm. How Does MAPPA Work? Offenders eligible for MAPPA are identified and information is gathered/shared about them across relevant agencies. The nature and level of the risk of harm they pose is assessed and a risk management plan is implemented to protect the public. In most cases, the offender will be managed under the ordinary arrangements applied by the agency or agencies with supervisory responsibility. A number of offenders, though, require active multi-agency management and their risk management plans will be formulated and monitored via MAPP meetings attended by various agencies. Who are the MAPPA Offenders? Category 1 - Registered sexual offenders: Sexual offenders who are required to notify the police of their name, address and other personal details and notify the police of any subsequent changes. Category 2 - Violent offenders: Offenders sentenced to imprisonment/detention for 12 months or more, or detained under hospital orders. This category also includes a small number of sexual offenders who do not qualify for registration and offenders disqualified from working with children; and Category 3 - Other dangerous offenders: Offenders who do not qualify under categories 1 or 2 but who currently pose a risk of serious harm, there is a link between the offending and the risk posed, and they require active multi-agency management. These will continue to function in partnership with the adult safeguarding board
MARAC MARAC - Multi Agency Risk Assessment Conference – might be called by a social worker if concerned What is MARAC? A MARAC is a meeting where information is shared on high risk domestic abuse victims (those at risk of murder or serious harm) between representatives of local police, probation, health, child protection, Adult Social Care, Mental Health services, housing practitioners, Independent Domestic Violence Advisors (IDVA's) and other specialists from the statutory and voluntary sectors. The primary focus of the MARAC is to safeguard the adult victim by sharing information and agreeing a risk focused, coordinated safety plan. At the heart of a MARAC is the working assumption that no single agency or individual can see the complete picture of the life of a victim, but all may have insights that are crucial to their safety. The victim does not attend the meeting but is represented by an Independent Domestic Violence Advocate (IDVA), or the referring practitioner, who speaks on their behalf.MARAC The purposes of MARAC are: To share relevant information about the victim, perpetrator and children; To discuss options for increasing the safety of the victim and turn these into a co-ordinated action plan. 3.2 How Does MARAC Work? A MARAC is held once a month in each local authority area. An emergency MARAC can be called, depending on urgency of situation and would need to be discussed with the MARAC Chair. The meeting is co-ordinated and chaired by Thames Valley Police. An I.T system called MODUS is used to securely store and share information about all MARAC referrals. Each agency who is a core participant of MARAC will have a Designated MARAC Officer (DMO) who has access to MODUS. For agencies that are not core participants but wish to make a referral, the MARAC Administrator should be contacted for advice.
Protections in the Mental Capacity Act 2005 The Mental Capacity Act 2005 created the criminal offences of ill-treatment and wilful neglect in respect of people who lack the ability to make decisions. The offences can be committed by anyone responsible for that adult’s care and support. These offences are punishable by fines or imprisonment. Ill-treatment covers both deliberate acts of ill-treatment and also those acts which are reckless which results in ill-treatment. Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform. Criminal offences and adult safeguarding – section 42 duty to investigate Adults at risk of abuse and neglect are entitled to the protection of the law in the same way as all. Behaviour which amounts to abuse and neglect, for example assault and physical, sexual or psychological abuse, theft and fraud and certain forms of discrimination may also constitute specific criminal offences. If a local authority, other agency or individual believes that a criminal offence may have been committed then it must refer it to the police urgently.
Forced marriage: the statistics STATISTICS JANUARY TO DECEMBER 2013 - The FMU gave advice or support related to a possible forced marriage in 1302 cases1. - Where the age was known, 15% of cases involved victims2 below 16 years, 25% involved victims aged 16-17, 33% involved victims aged 18-21, 15% involved victims aged 22-25, 7% involved victims aged 26-30, 3% involved victims aged 31+. 82% of cases involved female victims and 18% involved male victims. - The FMU handled cases involving 74 different countries3, including Pakistan (42.7%), India (10.9%), Bangladesh (9.8%), Afghanistan (2.8%), Somalia (2.5%), Iraq (1.5%), Nigeria (1.1%), Saudi Arabia (1.1%), Yemen (1%), Iran (0.8%), Tunisia (0.8%), The Gambia (0.7%), Egypt (0.6%) and Morocco (0.4%). The origin was unknown in 5.4% of cases. - Within the UK the regional distribution was: London 24.9%, West Midlands 13.6%, South East 9.9%, North West 9.3%, Yorkshire and Humberside 6.8%, East Midlands 4.2%, East Anglia 3.5%, Scotland 2.9%, North East 2%, South West 1.6%, Wales 1.6%, Northern Ireland 0.3%. The region was unknown in 19.4% of cases. - 97 cases involved victims with disabilities. - 12 involved victims who identified as lesbian, gay, bisexual or transgender (LGBT
Forced Marriage: new offence The Anti-social Behaviour, Crime and Policing Act 2014The Anti-social Behaviour, Crime and Policing Act 2014 makes it a criminal offence to force someone to marry This includes: Taking someone overseas to force them to marry (whether or not the forced marriage takes place) Marrying someone who lacks the mental capacity to consent to the marriage (whether they’re pressured to or not) Breaching a Forced Marriage Protection Order is also a criminal offence NB The civil remedy of obtaining a Forced Marriage Protection Order through the family courts will continue to exist alongside the new criminal offence, so victims can choose how they wish to be assisted. Local authorities can apply for these. Statutory guidance can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322310/HMG_Statuto ry_Guidance_publication_180614_Final.pdf Practice guidance for front line workers can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322307/HMG_MULTI_ AGENCY_PRACTICE_GUIDELINES_v1_180614_FINAL.pdf
Female Genital Mutilation: the data The Female Genital Mutilation Prevalence Dataset is a monthly return of aggregated patient data generated by acute hospital providers in England. The Female Genital Mutilation (FGM) Prevalence Dataset Information Standard (ISB1610) http://www.hscic.gov.uk/5148 was published on 1 April 2014, with the first monthly return submitted in May 2014. It was mandated as a monthly return from 1 September 2014 and collects a count of incidence of patients with FGM identified in acute care Trusts.http://www.hscic.gov.uk/5148 For the month of September 2014: 125 of the 160 eligible acute trusts in England submitted signed off data. 1,279 active cases(i) and 467 newly identified(ii) cases of FGM were reported nationally.
Female Genital Mutilation: protection FGM is illegal in the UK. In England, Wales and Northern Ireland, the practice is illegal under the Female Genital Mutilation Act 2003 (this offence captures mutilation of a female’s labia majora, labia minora or clitoris), and in Scotland it is illegal under the Prohibition of Female Genital Mutilation (Scotland) Act 2005. It is unlawful to:- perform FGM in England, Wales or Northern Ireland (section 1 of the Act); assist a girl to carry out FGM on herself in England, Wales or Northern Ireland (section 2 of the Act); and assist (from England, Wales or Northern Ireland) a non-UK person to carry out FGM outside the UK on a UK national or permanent UK resident (section 3 of the Act). Provided that the mutilation takes place in England, Wales or Northern Ireland, the nationality or residence status of the victim is irrelevant. FGM TAKING PLACE OVERSEAS Section 4 of the 2003 Act extends sections 1 to 3 to extra-territorial acts so that it is also an offence for a UK national or permanent1 UK resident to: perform FGM abroad (sections 4 and 1 of the Act); assist a girl to perform FGM on herself outside the UK (sections 4 and 2 of the Act); and assist (from outside the UK) a non-UK person to carry out FGM outside the UK on a UK national or permanent UK resident (sections 4 and 3 of the Act). The extra-territorial offences are intended to cover taking a girl abroad to be subjected to FGM. By virtue of section 1(4) of the 2003 Act, the exceptions set out in sections 1(2) and (3) also apply to the extra-territorial offences. Any person found guilty of an offence under the Female Genital Mutilation Act 2003 is liable to a maximum penalty of 14 years imprisonment or a fine, or both. There is statutory guidance on prevention of this activity: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/355044/MultiAgencyPracticeGuidelines.pdf
Domestic violence: What can private individuals do? Look out for themselves Look out for each other Assisted in doing so by a new national initiative
The Domestic Violence Disclosure Scheme ( Clare’s Law) Background:- Clare Wood’s story Clare Wood was murdered by strangulation and set alight by her former partner in Greater Manchester in 2009. Her partner had three previous convictions under the Protection from Harassment Act 1997. Clare had met him on Facebook and was unaware of his history of violence against women, including repeated harassment, threats and the kidnapping at knifepoint of one of his ex-girlfriends. There was a call by the Coroner at Clare’s inquest for women to have the right to know if a new partner had a history of domestic violence.
Claire’s story: the aftermath Michael Brown campaigned for a new type of ‘Sarah’s Law’ (which allows parents to search the register of convicted paedophiles living in their area) which is applicable for domestic violence victims. Following a successful 1 year pilot in the Greater Manchester, Nottinghamshire, West Mercia and Wiltshire police force areas a national disclosure scheme was rolled out across England and Wales from 8 March 2014, the domestic violence disclosure scheme will be implemented across England and Wales. has been introduced. Because its development and implementation was spurred on by the tragic death of Clare Wood it is known as ‘Clare’s Law’ though the official name is The Domestic Violence Disclosure Scheme.
The legal basis for the scheme The Domestic Violence Disclosure Scheme has not been introduced by way of new legislation so is a policy implemented as a new way of working within the existing legal framework (including established case law, the Human Rights Act 1998, the Data Protection Act 1998 and the Rehabilitation of Offenders Act 1974). The scheme does not replace existing arrangements for Disclosure and Barring Service (DBS) checks, Subject Access or Freedom of Information (FOI) requests. It is designed to enhances the previous arrangements whereby disclosure occurred largely in a reactive way when agencies came into contact with information about an offender having a history of previous violence.
Aims of the scheme The scheme is intended to:- introduce recognised and consistent procedures for disclosing information that enables a new partner of a previously violent individual make informed choices about whether and how to take forward that relationship; enhance the previous ‘reactive’ arrangements; create a “right to ask”, so that individual members of the public can now proactively seek information, with an expectation that the agencies responsible for safeguarding victims of domestic violence will check to see whether relevant information exists and if it does, that consideration will be given to its disclosure where necessary to protect the victim; create a “right to know”, where a safeguarding agency comes into the possession of information about the previous violent behaviour of a person that may cause harm to another person, members of the public can now expect the safeguarding agency to consider whether any disclosure should be made and to disclose information if it is lawful, necessary and proportionate to protect the potential victim from further crime; encourage individuals to take responsibility for safety of the victim.
How it works in practice The existence of the scheme is not carte blanche for the police to disclose information about an individual. There are safeguards which mean that in respect of each person a request is made for a decision-making process will be followed
Confidentiality/ Data protection principles Common law, the Data Protection Act 1998 (“DPA 1998”) and the Human Rights Act 1998 (“HRA 1998”) provide the key principles 1.information-sharing must be in accordance with law At Common Law there is a duty of confidence (separate to and pre- dating the Data Protection Act. Case law reveals a defence to breach of confidence at common Law where the breach is in the public interest. The prevention, detection, investigation and punishment of serious crime and the prevention of abuse or serious harm will usually be sufficiently strong public interests to override the duty of confidence.
2. information-sharing must comply with the eight Data Protection Principles set out in the DPA 1998 Principle 1 the information shared must be accurate and up-to-date; it must be stored securely; it must not be retained any longer than necessary. It must be processed fairly and lawfully and, in particular, shall not be processed unless— (a) at least one of the conditions in Schedule 2 is met, and (b )in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Data shall be handled with the data subject’s consent, transparently, and only in ways which the data subject would reasonably expect. N.B. Section 29(1) DPA 1998 exemption provides an important exemption to the requirement to comply with data principle 1 if the sharing of personal data is necessary for the prevention and detection of crime.
3. information-sharing must be necessary. Article 8 of the European Convention on Human Rights, (through the HRA 1998), provides a right to respect for private and family life, home and correspondence. Any interference with this right by a public authority (such as a criminal justice agency) must be “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The sharing of personal information about a potential perpetrator may be an interference with a person’s right to a private and family life. To comply with Article 8 of the European Convention on Human Rights, any such interference must be shown to be necessary and proportionate in the interests of public safety or for the prevention of disorder or crime.
4. information-sharing must be proportionate. The third Data Protection Principle provides that personal data must be relevant, and not excessive in relation to the purpose for which it is being shared. A person considering a disclosure must ensure that information about the data subject is relevant to assessing and managing risk and that no more information is shared than is needed to manage that risk.
The process -1 “Right to Ask” Step 1(a)– Initial Contact with Police via a direct application to the police for information about the previous violent behaviour of the relevant person. N.B this application can come from an applicant who is:- a.the partner of the subject of the request; or b.a third party who has some form of contact with the applicant (such as a parent, neighbour or friend). The direct application can be made when either the personal applicant or the third party applicant makes contact with the police by :- a. attending s a police station in person; b. discussing with a police officer/member of police staff in the street; c. making direct contact as part of a police investigation to an incident; d. making a direct telephone call to the police e. emailing the police f. making an on-line report to the police (if available). There will then be checks of the Police National Computer
Step 1(b) – initial check, risk assessment and decision on whether to progress Disclosure Application The information gathered via the initial contact and minimum checks form:- a.the initial risk assessment; and b.the basis of a decision on whether to progress the Disclosure Application. If it is identified there is an immediate/imminent risk of harm to A, then ACTION MUST BE TAKEN IMMEDIATELY to safeguard those at risk.
Step 2 – Face to Face Meeting If following the risk assessment conducted under step 1, the police decide that the disclosure application should continue, the person who made the application must be seen in a face to face meeting. This is to ensure that the request is: a. genuine and not malicious; and b. to establish further details about the application in order to further assess risk and to inform a decision around disclosure; and c. to provide safety information and advice to safeguard A.
Step 3 - Full risk assessment Following the face-to-face meeting, the police should then consider conducting a full risk assessment :- Scenario 1: the original applicant is A Under Scenario 1, the Domestic Abuse, Stalking and Harassment and Honour Based Violence (DASH) form should be fully completed and reference made to existing guidance issued by the Association of Chief Police Officers (ACPO) on domestic violence. Completion of the DASH form is vital to establish an appropriate safety plan for A. Checks will also be completed with other agencies where appropriate. This will include: social services (where the applicant has given consent on the referral form or where the circumstances of the enquiry dictate this is necessary without consent); probation service; the Multi-Agency Risk Assessment Conference (MARAC); any other agency that can provide information to inform the risk assessment.
Scenario 2: the original applicant is C Under Scenario 2, 1. Checks should be carried out; 2. the police should consider whether, a decision to disclose information should be referred to the decision-making forum. 3. Referral to local decision-making forum 4. decision
The process -2 “Right to Know” Stage 1 – referral received;/become aware of the potential victim; Stage 2.1 initial checks against :- Police National Computer (PNC); Police National Database (PND); Stage 2.2 - risk assessment under Stage 3. Stage 2.3 - referral to local decision-making forum Stage 2.4 – decision (to disclose or not to disclose)
What is done locally? The local scheme Leicestershire Police, like all other constabularies in England, has a website providing information for individuals wishing to learn more about Clare’s Law including:- An information booklet for those who have concerns about their partner, An information booklet for those who have concerns about somebody else’s partner; and an application form for those wishing to request a disclosure from the police The link is https://leics.police.uk/advice-and-information/victims- witnesses/domestic-abuse-disclosure-scheme-clares-lawhttps://leics.police.uk/advice-and-information/victims- witnesses/domestic-abuse-disclosure-scheme-clares-law
Legal remedies avaialble Family Law Act 1996 s 42– Non molestation Orders Protection from Harassment Act 1997
What can the police do? They can be proactive:- They can initiate the MAPPA and MARAC process where appropriate They can respond to an immediate crisis not in the traditional way of telling the victim to go and see a lawyer but by using a new national scheme
DV Prevention Notices (DVPNs) & DV Prevention Orders (DVPOs) Background In March 2009 Chief Constable Moore (Wiltshire Police) was asked to undertake a full review of what additional powers the Criminal Justice Service (CJS) might need to control the activities of perpetrators of gender based violence, including domestic violence and in particular serial offenders. The review, entitled “Tackling Perpetrators of Violence against Women and Girls”, identified a number of proposals one of which relates to Domestic Violence Protection Notices (DVPNs). The recommendation for was for a procedure to provide immediate emergency protection for the victim and allowing them protected ‘safe space’ to explore the options available to them and make informed decisions regarding their safety.
Legal framework The CSA 2010 gives the Secretary of State the discretion to make an order for the provisions of the Act to come into force for the purpose of a pilot. DVPNs and DVPOs under Sections 24-30 CSA were piloted in the policing areas of Greater Manchester Police, West Mercia Police and Wiltshire Police. This has since been rolled out nationally
Procedure Stage 1: Application to Authorising Officer DVPN can only be issued by a police officer of the rank of Superintendant or above. Although a DVPN / DVPO does not require the consent of the victim, all evidence / information available at the time will support the subsequent consideration by the superintendent and also the magistrate’s court. Police guidance makes clear that in all domestic abuse cases officers/staff should consider the incident as a whole including previous calls to the address, the presence and welfare of children, other witness accounts and any other available intelligence held by other agencies. It is imperative to the success of the DVPN / DVPO process that this investigation is conducted at the earliest opportunity as it will form part of the information given to the AO.
Stage 2: Authorisation of DVPN Section 24 (1)-(2) of the CSA 2010 provides the power to issue a DVPN. The AO may issue a DVPN to ‘P’ if they have reasonable grounds for believing that: 1. P has been violent towards, or has threatened violence towards an AP and 2. The issue of the DVPN is necessary to protect that person from violence or a threat of violence by ‘P’. Section 24 (3)-(5) of the CSA 2010 outlines the areas that the AO must consider prior to issuing a DVPN and must take reasonable steps to discover the opinions of; the welfare of any person under the age of 18 whose interests the officer considers relevant: the opinion of the person for whose protection the DVPN would be issued; any representations made by ‘P’; and the opinion of any other AP who lives in the premises to which the DVPN would relate. N.B The AO may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN..
What can the DVPN contain? Section 24 (6)-(8) of the CSA 2010 details the specific prohibitive conditions available upon authorisation and service of a DVPN (NB the HRA required prohibitions must be necessary and proportionate) A DVPN must: contain a provision to prohibit ‘P’ from molesting the person for whose protection it is issued. This may be explicit in referring to particular acts of molestation, to molestation in general, or to both (NB the terms ‘molestation’ and ‘particular acts of molestation’ are not defined in the CSA 2010) A DVPN may: If ‘P’ lives in the same premises as the person for whose protection the DVPN is issued, the DVPN may also: prohibit ‘P’ from evicting or excluding from the premises the person for whose protection the DVPN is issued; prohibit ‘P’ from entering the premises; An exception should be considered that, on one occasion, P will need to enter the property, in the presence of officers, to collect necessary possessions,; require ‘P’ to leave the premises; or prohibit ‘P’ from coming within such distance of the premises as may be specified in the DVPN.
Stage 3 – DVPN Issued 5.3 Stage 3 – DVPN Issued Sections 25 (1)-(3) of the CSA 2010 provides the requirements for the contents and service of a DVPN. DVPN must be in writing and must be served on ‘P’ personally by a constable. Notice of the Hearing will be treated as a summons.
Consequences of breach 5.4.13 Although a breach of a DVPN itself is not a criminal offence, it will be a relevant factor for the magistrates’ court to consider when deciding an application for a DVPO. Section 25(1)(b) CSA 2010 provides the power for a constable to arrest without warrant if the constable has reasonable grounds for believing that ‘P’ is in breach of a DVPN. Any person arrested by virtue of section 25(1) (b) for a breach of a DVPN must be brought before the court before the end of the period of 24 hours beginning with the time of the arrest or if earlier, at the hearing of that application. Section 26(1)-(4) of the CSA 2010 outlines the powers in relation to a breach of a DVPN. Section 26(1) (a) provides that ‘P’ must be remanded in custody to be brought before the magistrates court in order to hear the application for the DVPO.
Stage 4 : application for DVPO An application of a DVPO must be heard no later than 48 hours after the DVPN was served. If it is not then the DVPN will lapse and must be removed from PNC. Section 27(1)-(10) of the CSA 2010 provides the requirements for the application for a DVPO. The application for a DVPO will be made by representatives of the police to a magistrates’ court. This may be a police officer / member of police staff who is experienced in domestic abuse and has received appropriate training or a member of the legal services department or a legal representative acting on their behalf. Section 28(1)-(3) CSA 2010 provides the conditions which have to be met when the magistrates’ court consider issuing a DVPO. Essentially the magistrates’ court may make a DVPO if they are satisfied on the balance of probabilities that:- 1. ‘P’ has been violent towards, or has threatened violence towards an AP; and 2. that the making of the DVPO is necessary to protect that person from violence or a threat of violence by ‘P’. Section 28(4)-(5) CSA 2010 provides the considerations when making a DVPO, the welfare of any person under the age of 18 whose interests the court considers relevant any opinion of which the court is made aware: – of the person for whose protection the DVPO would be made; and – of any other AP who lives in the premises to which the DVPO would relate. NB A DVPO can be issued without the consent of the victim.
What can a DVPO contain? Section 28(6)-(8) CSA 2010 outlines the prohibitions available for a DVPO. A DVPO must contain a provision to prohibit ‘P’ from molesting the person for whose protection it is made. This may be explicit in referring to particular acts of molestation, to molestation in general, or to both. If ‘P’ lives in the same premises as the person for whose protection the DVPO is made, the DVPO may also: prohibit ‘P’ from evicting or excluding from the premises the person for whose protection the DVPO is issued; prohibit ‘P’ from entering the premises; require ‘P’ to leave the premises; or prohibit ‘P’ from coming within such distance of the premises as may be specified in the DVPO. A DVPO must state that a constable may arrest ‘P’ without a warrant if the constable has reasonable grounds for believing that ‘P’ is in breach of the DVPO. A DVPO must state the period for which it is to be in force. This will be for a minimum of 14 days and a maximum of 28 days, beginning with the day on which it is made. A DVPO must also contain a warning that a breach of the conditions may lead to P being arrested for the breach and a possible fine of £50 for every day whilst in breach, upto a maximum of £5000 or 2 months imprisonment.
Children And Families Act 2014 Streamlining the care and adoption court process Creating a new Family Court 26 week deadline Making the test for instructing independent experts in family proceedings more stringent