FORCE PROCEDURES The Family Law Act 1996 Procedure Reference Number: 2009.05 Procedure Author: DI Mark Tasker, Strategic Public Protection Unit Procedure Review Date: March 2012 At the time of ratifying this procedure, the author is satisfied that this document complied with relevant legislation and Force requirements. Sign and date M Tasker (Author(s)) V4.2 Family Law Act - Published Not Protectively Marked 1
Procedure Index ELECTRONIC NAVIGATION: - move the cursor over the page number in the index or blue underlined text until a hand appears. Click the left mouse button once and it will jump to the specified part of the document. 1. Responsibilities...3 2. Guidance...3 2.1 Introduction...3 2.2 Application for an Order...4 2.3 Service of Orders etc. on the Police...4 2.4 Breach of an Order...5 2.5 Special Measures...8 2.6 Protection of Children...8 3. Procedure Aim...9 4. Appeals...9 5. Review...9 V4.2 Family Law Act - Published Not Protectively Marked 2
1. Responsibilities Not Protectively Marked 1.1 It is the responsibility of the Area Commander to ensure that all orders, statements and other forms / documents issued under the Family Law Act 1996 are securely stored and accessible to staff at all times for inspection. 1.2 The Area Commander will ensure that on receipt of the order, statement of service and power of arrest form etc., copies will be forwarded to the relevant Area Public Protection Unit and HQ Administration of Justice (CHECRO). 1.3 The Head of Area Public Protection Units will ensure appropriate markers / records are placed the Child and Vulnerable Adult database. 1.4 The Head of HQ Administration of Justice will ensure appropriate markers / records are placed on the Police National Computer. 1.5 Where an order is discharged the Area Commander will ensure that a copy of the discharge notice will be forwarded to the relevant Area Public Protection Unit and HQ Administration of Justice (CHECRO). 1.6 The Head of the relevant area Public Protection Unit and the Head of HQ Administration of Justice (CHECRO) will ensure that existing entries on the Police National Computer and the Children and Vulnerable Adult database are updated accordingly or weeded if necessary. 1.7 When an order is discharged the area Commander will ensure that all original copies of family court documents served on the Constabulary are forwarded to the appropriate area Public Protection Unit for inclusion on any family file or destruction as appropriate. 1.8 Any breach of an order / injunction will be considered a domestic abuse incident and therefore officers must adhere to the Constabulary s Domestic Abuse Investigation procedures. 2. Guidance 2.1 Introduction Click Here to Return to Index 2.1.1 The Family Law Act 1996, came into Force on 1st October 1997, Part IV concerns domestic violence, occupation of the family home and forced marriage, and provides a single, consistent set of remedies which will be available in all courts with family jurisdiction. 2.1.2 The Act allows for courts to issue an Occupation Order under Section 33, a Non Molestation Order under Section 42 and a Forced Marriage Protection Order under Section 63. These orders are often called injunctions. V4.2 Family Law Act - Published Not Protectively Marked 3
Occupation Order Not Protectively Marked 2.1.3 An occupation order deals with the occupation of the home. It can, for example, define occupation rights in the home, including the exclusion of the respondent from it, or an area around it. Non Molestation Order 2.1.4 A non - molestation order prevents the respondent from molesting the applicant, or a relevant child. Forced Marriage Protection Order 2.1.5 A forced marriage protection order protects a person who is in a forced marriage or from being forced into a marriage. 2.2 Application for an Order 2.2.1 Sections 33, 42 and 63C of Family Law Act 1996 set out the criteria for those persons who are deemed eligible under the act to apply for an order. Application can be made at the Magistrates or County Courts or in the case of a Forced Marriage Protection Order, a designated County Court. 2.2.2 Section 63C (2) allows a relevant third party to apply for a Forced Marriage Protection Order. s63c (3) allows any other person with leave of the Court to apply. 2.2.3 The applicant will be required to attend court to make the application. Applications can be made ex parte (without the respondent (the other party) being present), but a further hearing will be necessary at a later date with the respondent present to put their views etc. to the court. 2.2.4 Applicants themselves can undertake the application process without any assistance. However, in most cases applicants should be encouraged to seek legal advice. This can be achieved in a number of ways; where the individual has sufficient funds they can engage a private solicitor, the individual may be eligible for Legal Aid and can be supported by a solicitor from a locally franchised family law firm, where the individual is ineligible for public funding and does not have their own sufficient funds to employ a private solicitor, then there are a number of organisations who will assist the individual in obtaining an injunction free of charge. 2.3 Service of Orders etc. on the Police 2.3.1 Where a court grants an order under the Family Law Act 1996, a copy of the order, together with a statement of service (showing that an order has been served on the respondent) and, where a power of arrest is attached to any provision contained within an occupation order, the Power of Arrest Form will be delivered, usually by or on behalf of the applicant, to the police station in the area where the applicant lives, or other police station specified in the order. It is the responsibility of the Area Commander to ensure that these forms are securely stored and accessible to staff at all times for inspection. V4.2 Family Law Act - Published Not Protectively Marked 4
2.3.2 If the order is later varied or discharged, then the court will immediately inform the police station involved and deliver a copy of the order to that station 2.3.3 The Area Commander will ensure that on receipt of the order, statement of service and power of arrest form, copies will be forwarded to the relevant Area Public Protection Unit and HQ Administration of Justice (CHECRO). It is the responsibility of the Area Commander to ensure that these forms are securely stored and accessible to staff at all times for inspection. 2.3.4 The Head of Area Public Protection Units will ensure appropriate markers / records are placed on the Child and Vulnerable Adult database. 2.3.5 The Head of the HQ Administration of Justice will ensure appropriate markers / records are placed on the Police National Computer. 2.3.6 Where an order is discharged (as per 2.3.2 above) the Area Commander will ensure that a copy of the discharge notice and all other original documents will be forwarded to the relevant Area Public Protection Unit and HQ Administration of Justice (CHECRO). 2.3.7 The Head of the relevant Area Public Protection Unit and the Head of HQ Administration of Justice (CHECRO) will ensure that existing entries on the Police National Computer and the Children and Vulnerable Adult database are updated accordingly or weeded if necessary. 2.3.8 When an order is discharged (as per 2.3.2 above) the Area Commander will ensure that all original copies of family court documents served on the Constabulary are forwarded to the appropriate Area Public Protection Unit for inclusion on any family file or destruction as appropriate. 2.4 Breach of an Order 2.4.1 Any breach of an order / injunction will be considered a domestic abuse incident and therefore officers must adhere to the Constabulary s Domestic Abuse Investigation procedures. Application for Committal 2.4.2 In certain cases an applicant may refer the matter back to the relevant judicial authority for it to be dealt with by way of an application for committal to prison for the breach. 2.4.3 Courts can issue a warrant of arrest under sections 47(8) and 63J of the Family Law Act 1996. 2.4.4 In those cases where the warrant is issued in a Magistrates Court, the Justices Clerk will deliver the warrant to the police for execution. In relation to the County Court the bailiff will execute the warrant. V4.2 Family Law Act - Published Not Protectively Marked 5
Occupation Order Not Protectively Marked 2.4.5 Under s47 of the Family Law Act, a Court has the power to attach a power of arrest to an Occupation Order. S47(6) states: If,, a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision. 2.4.6 S47(4) states: If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. 2.4.7 S47(6) states: If, by virtue of subsection (2) or (3), a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision. 2.4.8 S47(7) states: If a power of arrest is attached under subsection (2) or (3) to certain provisions of the order and the respondent is arrested under subsection (6) - (a) he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and (b) if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him. In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday. Forced Marriage Protection Order 2.4.9 Under s63h of the Family Law Act, a Court has the power to attach a power of arrest to a Forced Marriage Protection Order. 2.4.10 S63I (2) states: A constable may arrest without warrant a person whom the Constable has reasonable cause for suspecting to be in breach of any such provision or otherwise in contempt of court in relation to the order. 2.4.11 S63H (4) states: If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order. V4.2 Family Law Act - Published Not Protectively Marked 6
2.4.12 S63I (3) states: Not Protectively Marked A person arrested under subsection (2) must be brought before the relevant judge within the period of 24 hours beginning at the time of his arrest In calculating any period of 24 hours for the purpose of subsection (3), Christmas Day, Good Friday or any Sunday are to be ignored. Non Molestation Order 2.4.13 In cases where there has been a breach of a non molestation order the applicant can deal with the matter themselves, usually through their solicitor, and refer the breach back to the relevant judicial authority (see 2.4.2 above) or they can call in the police, a breach of non molestation order is a criminal offence. 2.4.14 Not every applicant will want to involve the police and may wish for the matter to be dealt with via the civil court, the court can if needs be issue a warrant for the person s arrest. If the civil court is satisfied that the order has been breached it can sentence the person breaching the order to up to 2 years imprisonment or fine them. 2.4.15 As highlighted above, if a person breaches a non molestation order they will commit a criminal offence under s42(a) of the Family Law Act 1996. The offence is committed where a person: (i) is subject to a non molestation order; and (ii) does anything prohibited by the non-molestation order; and (iii) does not have a reasonable excuse. 2.4.16 If the non-molestation order was granted at an ex parte hearing, then an offence will only be committed if the person was aware of the existence of the order at the time he/she breached the order. 2.4.17 The offence of breach of a non molestation order is a recordable crime and officers must adhere to the National Crime Recording Standards. 2.4.18 This offence of breach of a non molestation order is triable either way with a maximum penalty on indictment of five years imprisonment, or a fine, or both. Therefore, Crown Prosecution Service authority for charging must be obtained. 2.4.19 Officers can use their powers to arrest under s24 Police and Criminal Evidence Act 1984. 2.4.20 There is a statutory defence of reasonable excuse, with the burden being on the defendant to show that his/her excuse for breaching the non-molestation order was reasonable. Reasonable will need to be considered on a case-by-case basis. 2.4.21 CPS guidance states that prosecutors will be particularly looking for evidence of the following; (i) the existence of a non-molestation order; V4.2 Family Law Act - Published Not Protectively Marked 7
(ii) in the case of an order made ex parte without notice, the defendant was aware of its existence, (this means that where a defendant is aware of the existence of a non-molestation order but has evaded service, or made no effort to ascertain its terms, he/she may still commit a criminal offence by breaching the order s terms); (iii) the terms of the order; (iv) that the defendant is the person named in the order; (v) that the order was in force at the time of the alleged breach; and (vi) the act(s) complained of amount to a breach of the terms of the order. (vii) the current status of the family proceedings (viii) any bad character evidence (especially relating to domestic violence) this will be essential when sentencing is considered. 2.4.22 If evidence from the Civil Court (e.g. the order itself) is not already available and is required for the prosecution case, then the advice and help of the Force Solicitors department should be sought in relation to seeking an application from the relevant court for disclosure of the appropriate material. 2.4.23 If the behaviour (i.e. the breach) has already been dealt with by the civil courts as a contempt, then no criminal offence is committed. Officers must ensure that this has been checked with the civil court and highlighted to the CPS (as (vii) above). Similarly, a person cannot be dealt with for contempt of court if they have been convicted under s42(a). 2.4.24 The protection from double jeopardy only applies on conviction, therefore if an individual has been acquitted, the victim may still seek a committal into custody via proceedings in the Family Court. 2.4.25 In cases where there is both a non-molestation order and a Occupation Order in force (with a power of arrest), officers are advised to use their powers under the Occupation Order, as this will result in more expeditious justice, the judge being able to sentence the subject within 24 hours of the breach rather that embarking on the criminal justice process which can be somewhat longer. 2.4.26 Officers attending such incidents should obtain a short MG11 in every circumstance, and where the complainant does not wish action to be taken none will be taken. 2.5 Special Measures 2.5.1 When dealing with any offence of a breach of an order, officers must consider whether the victim is eligible for special measures under sections 16 or 17 of the Youth Justice and Criminal Evidence Act 1999 at the earliest opportunity. 2.6 Protection of Children 2.6.1 The Family Law Act 1996 under s52 and schedule 6 makes amendments to the Children Act 1989, providing greater protection for children in certain care proceedings. 2.6.2 Where a court makes an interim care order under s38 of the Children Act 1989 or an emergency protection order under s44, the court has the power (under sections V4.2 Family Law Act - Published Not Protectively Marked 8
38A and 44A respectively) to attach an exclusion requirement, which will permit the removal of a suspected abuser from the family home instead of having to remove the child for its own safety. 2.6.3 Under sections 38A(5) and 44A(5) the court can also attach a power of arrest to the exclusion requirement. 2.6.4 A copy of the order and a copy of the statement of service shall be delivered to the officer in charge of the police station where the dwelling house in which the child lives by or on behalf of the applicant. 2.6.5 The exclusion requirement, and any power of arrest attached thereto, will lapse automatically if the local authority remove the child from the dwelling house in question to other accommodation for a continuous period of more than 24 hours. The local authority must inform the police that the exclusion requirement and power of arrest have lapsed. 3. Procedure Aim Click Here to Return to Index 3.1 This procedure updates and replaces the Force Procedure on the Family Law Act 1996. 3.2 Since the introduction of the Family Law Act 1996 on the 1st October 1997 there have been a number of legislative changes to the Act, most recently those introduced via the Forced Marriage (Civil Protection) Act 2007. 3.3 This procedure aims to provide a framework for the practical implementation of the legislation. 4. Appeals Click Here to Return to Index 4.1 Persons affected by the exercise of powers, directives or action under this procedure have the right to make representations and/or challenges and/or appeals to the decisions involved, via judicial processes (e.g. Civil Law) and or non-judicial processes (e.g. internal management, grievance and complaints procedures). They may wish to consult with their legal advisor and/or their respective staff association representative when considering such processes or procedures. 5. Review 5.1 This procedure will be formally reviewed in 3 years to consider: Its effectiveness in the business area concerned Any changes to legislation Challenges to the procedure Click Here to Return to Index V4.2 Family Law Act - Published Not Protectively Marked 9
Any identified inefficiencies in relation to implementation Impact on diversity and equality (Low on the Race Diversity Impact Assessment Template) Click Here to Return to Index V4.2 Family Law Act - Published Not Protectively Marked 10