Law Assignment: Family Law & Social Welfare Case Analysis

Question

Law Assignment Instructions
To: A Trainee From: A Supervisor Date: [Today’s date]
Re: Tanya King v Jack King
I should be grateful if you would carry out a piece of research for me. We act for Tanya King in family law proceedings arising. Tanya married Jack on 1 October 2015. They have 3 children together: Amanda, date of birth: 4 April 2015; David, date of birth: 6 March 2017 and Bryan date of birth 8 August 2019. The family are living at 11 Chapel Street, Shropshire which is solely owned by Jack with the aid of mortgage with the Herts Building Society. Jack also owns another property absolutely, mortgage free which is currently is vacated. Jack works as an Architect and is earning £70,000 per annum, therefore Tanya has not had to work as they can easily live on what he earns. Tanya has informed us that Jack’s behaviour has recently changed. Jack has always had a bit of temper; however, this has become worse. He has been spending more time at work and comes home late. Jack screams abuse at Tanya on a daily basis and threatens her or resorts to violence. Tanya feels like his punching bag when he becomes frustrated. The first incident occurred when Tanya asked Jack for some money to buy groceries as she could no longer borrow money from her mother. This made Jack angry and he shouted that she was a “fat, useless slob who needs to get off her backside and work” and slapped her several times around the face. Tanya was left with a mark on her face. Tanya cannot recall separate incidents, but over the past months, he has slapped her face, punched her head and arms, kicked her. Another incident occurred last month that left her with scratches and bruising on her face and a bleeding nose. The incidents have occurred approximately once/ twice a week. A few days ago, Tanya accidently broke Jack’s laptop whilst cleaning. Jack lost his temper and punched her in the face and threatened that he will kill her. Tanya was frightened and feared for her safety, therefore, the next day she left with the children to stay with her friend Karen and her daughter. Karen lives at Flat 12, Tawney’s Road, Herts. Karen’s flat has only two bedrooms, so they are very cramped, but Tanya has nowhere else to go and no money to pay for accommodation. Tanya explains that she needs to return home as soon as possible as the children need to attend school and Karen lives in another city which is far away. Jack has his other property to move to which is vacant and he also could easily afford to rent a room in an hotel. Tanya has changed her number so Jack has no way of contacting her. Tanya believes it is best for the children to forget Jack and have no contact with him as Amanda has witnessed Jack’s abusive behaviour towards Tanya on several occasions which has left her feeling scared. Amanda has recently started having nightmares and panic attacks due to this. David has also started saying “Daddy is scary” and “Daddy looks like a monster”, Bryan is too young to understand what is happening most of the time and therefore he asks after Jack. Tanya has confirmed that she is seeking to change the children’s school as she wants to ensure that Jack has no way of contacting them.

Thank you.
A. Supervisor
Required: Please advise on the following issues, you must cite and include relevant case law and legislation:
1. What Orders can Tanya apply for to protect herself and the children, and on what grounds Advise Tanya on whether this application would be successful or not, make references to the law.
2. Tanya wants to know what steps Jack could take with regards to the children. Advise Tanya on any applications that Jack could make and the courts approach to such applications.

Answer

1. In the first part of law assignment, a research needs to be conducted on behalf of Tanya King in family law proceedings regarding the orders that can be applied for by Tanya in order to protect herself and her children from her husband Jack. Advice also needs to be given Tanya if this application is going to be successful or not.

Since 1976, civil orders for protecting the victims of domestic abuse have been in use in England and Wales. Restraining orders (RO), non-molestation orders (NMO), Occupation orders (OO), Domestic Violence Protection Measures (DVPO) and Female Genital Mutilation Protection Orders (FGPO) are the six major behavioural protection orders now in use in England and Wales for interpersonal and familial violence (FGMPO). The following sections go into greater depth on these hierarchies. The primary orders for domestic violence are ROs, NMOs, and DVPOs, which are the focus of this research. Since 2003, the number of OOs has been steadily declining, and they have been partially replaced by DVPOs. DVPOs and the attendant questions of habitation and residency in the married home are not covered in depth in this study. It is important to note that while all three orders are preventative in nature, there is a significant difference in conditions where they can be granted, who can apply, grant these and how they can be imposed, depending on whether they are criminal or civil in nature.

Recently, protection orders have shifted from solely being civil law remedies to increasingly being imposed as part of criminal processes and by criminal justice officials, including the police. This has led to a proliferation of varied protection orders, as well as the 'hybridization' of criminal and civil procedures to safeguard domestic violence victims. Since the government is proposing a new, all-encompassing protection order for domestic violence, an examination of the ramifications of this transition is long overdue in academic and policy review literature. Bill introduced on July 16, 2019, includes protection orders for domestic violence victims. To begin with, the government plans to employ these new orders as a replacement for DVPN/DVPOs and NMOs/ROs in domestic violence situations.

Restraining orders
Protection from Harassment Act, 1997 allows judges to issue civil restraining orders (ROs) after conviction (or acquittal) in a criminal case. As a result, a RO can only be issued if a criminal charge has been filed against the alleged offender. Orders are neither requested nor consented to by the victims themselves.

Protection against domestic violence, stalking and harassment is provided by ROs by barring entry to certain regions and implementing contact limits. They can be created for an endless period of time and are re-usable. Typically, they endure six to twelve months. There are two types of courts where a breach case can be heard: The Courts of Magistrates or Crown courts. ROs were only awarded before to 2009 if a person was convicted of harassment under PHA 1997. Since the passage of the Domestic Violence, Crime and Victims Act 2004 in 2009, judges have been able to issue ROs upon conviction of any crime (not only harassment) as well as upon acquittal of certain charges. In circumstances where there was “clear proof” that the victim was in need of protection but not enough evidence exists to convict, the government stated that this was a necessary extension. When it comes to protecting victims, early assessments of the 2004 Act's expansion of the circumstances under which ROs can be given suggest that professionals see this as the Act's most significant provision.

Domestic violence protection orders
The Crime and Security Act, 2010 established DVPNs and DVPOs, which went into effect across the country in 2014. Additionally, they were issued by the police present on the place to provide urgent protection to domestic abuse victims following an occurrence, while alternative avenues were investigated, such criminal charges or civil orders or victim support. The police spotted a loophole in the system, and the government stepped in to fill it. There is no need for the victim to consent or apply for DVPNs and DVPOs if the police consider there is a reasonable basis to assume that the suspect was violent or gave a threat of violence to an associated person and that such order is essential for protecting the individual. Assaulting the victim is immediately prohibited by a DVPN, which may also evict the perpetrator from the property or restrict their ability to enter the premises. For the police, the next step is to seek a 28-day DVPO from a magistrate. The police decide whether or not to enforce this order, therefore it functions as an emergency notice of non-molestation and eviction (similar to an occupation order). The DVPO has an arrest power, thus police can make an arrest if the DVPO is violated. However, violating the DVPO constitutes civil contempt.

DVPOs aren't meant to replace criminal charges, but the government says they can be used if an arrest and indictment aren't possible right away: “when no other legal limits can be imposed on the culprit”. In order to obtain a DVPO, the police must demonstrate that no other measures, such as bail terms, can prevent additional violence, and they are strongly advised in police instructions of avoiding their use in high-risk instances or circumstances where a criminal prosecution is possible.

Non-molestation orders
Victims in civil cases seek non-molestation orders (NMOs) gave under Part IV, 1996 Family Law Act (with or without a solicitor). An NMO can be granted on the basis of civil evidence, and victims do not need to file a criminal complaint or go through any legal proceedings in order to do so. Like ROs, they prohibit domestic abuse, stalking and nuisance by keeping the offender from getting in touch with the victim and/or going to particular locations. Relatives and those in same-sex partnerships, as well as heterosexual close partners, were added to the list of parties covered by the orders, which were criminalized in 2007 and had the right to arrest anyone who violated them. It is possible to prolong the term of the contract if the applicant requests it.

Shift towards criminalization:
Violence against women in the home has become more and more criminalized during the 1990s since it is now seen as an issue that should be handled by the police rather than a private concern between the two parties involved. When it comes to criminal and civil law remedies, there is a concurrent shift toward the establishment of hybrid civil-criminal remedies. Experts identified the beginning of this trend as the criminalization of the civil ASBO order. This "hybridization" is most apparent in domestic violence protection orders, which were criminalized in 2007 when the 2004 Domestic Violence, Crimes, and Victims Act came into effect (Hester et al. 2008). Forcible marriage protection orders (FMPO) were first introduced in 2007 but only criminalized in 2014. Similarly, female genital mutilation protection orders (FGMPO) were introduced in 2015 but criminalized from the outset of their implementation in the same pattern. When an order's conditions are breached, the police can arrest an abuser without going back to court, but the victim can still apply for an arrest warrant or committal order if they don't get charged. This shifts the enforcement responsibility for non-compliance from the victim to the police, but still allows the victim to seek arrest warrant or committal order by family court if the police fail to pursue a charge.

Legalization of civil disobedience is not without debate. Legislators were concerned that criminalizing breach could lead to a lower civil standard of proof in criminal cases, which was discussed extensively during the 2004 Act's enactment. Having quasi-criminal processes available to police may deter them from seeking actual criminal charges. Cops have been employing short-term summary measures like arrest and release without action or violation of the peace to “handle” domestic violence, especially when the victim is “non-cooperative,” according to some evidence. Victims may be less inclined to seek orders like NMOs a they are afraid of criminalizing their partners or not having the choice to do so. In defense of civil law, advocates for victim's rights argue that civil law empowers victims because it gives them control over how and when they can access protection; converse mentally, it may disempower victims by criminalizing their partners when police enforce breach – even if this is not what the victim wanted; police and courts delivering orders without needing consent from victims.

In the present scenario, there was a change in Jack's behavior and he suddenly started abusing and threatening Tanya. Moreover, he was using Tanya as a punching bag. He slapped and punched Tanya many times. He also threatened to kill her. Under these circumstances, Tanya left the family home and started to live with her friend Karen. However, Jack owns another house and at the same time he can also afford to stay in a hotel. Therefore, Tanya can seek an order from the court, allowing her to live in the family home along with her children and also a domestic violence protection order.

2. Advice needs to be given to Tanya regarding the steps that may be taken by Jack regarding the children. For this purpose the rights of a father need to be considered. On the other hand, Tanya wants to make sure that Jack cannot contact his children and has no say in their upbringing. However, there are certain legal actions that may be taken by Jack regarding the children.

When it comes to the upbringing of his child, a father in the United Kingdom has a certain amount of say. Unless the mother agrees, the father can take action to protect his right to visit his children.

It is the child's right to have a meaningful relationship with both parents that is protected by the law, rather than the parents' responsibility to their children. As long as it is in the child's best interest and welfare to have a relationship with both parents, the court is likely to take this into consideration. As a result, the rights of a father to raise a kid are equal to those of a mother under the law.

Due to the stress and disagreements that often accompany a divorce, many divorcing couples are unable to agree on the level of contact a father should have with his kid. If this is the case, the father may have to go through the family court system in order to be able to see his child.

Child access to both parents is a fundamental right in England and Wales. Both the mother and the father have a duty to look out for the best interests of their children, which includes providing them with adequate nutrition, clothing, and other necessities. However, a father's rights over a kid can be different. According to these factors, a child's father's status in the child's birth certificate and whether or not the father has parental responsibility all play a role.

During a marriage, both the father and the mother have the same rights to a kid. When a father is married to the mother of his kid, the courts in England assume that he is the biological father. The child's legal and physical custody can therefore be divided between the mother and father. Many fathers worry if they have the right to see their children while they are married. The mother and father each have equal custody rights in the case of a married couple. Equal custody rights for both parents remain in place until such time as an order issued by a court is overturned by an appeal. It is the child's right to have a meaningful relationship with both parents that is protected by the law, rather than the parents' responsibility to their children. As long as it is in the child's best interest and welfare to have a relationship with both parents, the court is likely to take this into consideration. As a result, the rights of a father to raise a kid are equal to those of a mother under the law.

Hence in the present case, Jack take steps to make sure that he is allowed to see his children even after his separation from Tanya and he has a say in the upbringing of the children.

Bibliography
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