Learning from the Past, Looking to the Future: Session 1 – Domestic Abuse and the Law

The Family Home: a Private Refuge?

Jane Mair, University of Glasgow

Clare Connelly


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–          Perspective of private law, family law

–          Years ago wives and children forced to flee from private home to escape abuse until Matrimonial Homes Act 1981

  • Private law with shield of property
    • Cast out husbands and men instead
    • Rejected by judges
  • Restored eventually by judges; allowed women and children to stay in their family home
  • Illusion of exclusion

–          1981 Matrimonial Homes Act

  • Controversial: new form of protection but posed a threat to property rights
  • Also about separate property between husband and wife
    • Used to be nothing wrong with husband or wives evicting their spouse from property—no matrimonial rights
    • Was going to modify this view of ownership between married partners
  • Introduced Occupancy Rights
    • Seen as a starting point
  • Also introduced framework of legal orders
    • Ownership and legal occupancy
    • Instead of victim having to leave the perpetrator would be the one excluded
    • Better to keep the family in the family home and man be excluded

–          Exclusion Order

  • Challenges property rights therefore a reasonably strict test
    • Must show exclusion order was necessary to protest applicant or children
      • Includes children too
      • Broad: mental and physical
      • No need to wait for conduct, could be threats too
      • Significant new way to tackle problems of domestic abuse and homelessness
  • Statute provisions torn apart by judges
    • Inner house made the test of necessity made it even tougher and almost impossible to pass
      • Danger had to be immediate, severe and irreparable
    • Decided not to be necessary if the applicant had already left the home
    • Bell v Bell 1983

–          1996 Judicial approach had changed

  • McCafferty Case—language of statute deemed acceptable and applicable
    • From this point from family law perspective what was promised had been achieved
      • Legally all seemed fine
  • But not that many cases have happened nothing about domestic abuse or application of these exclusion orders occurred in ages
  • Nobody is dealing with these orders even with the success of passing the order
    • Empty triumph
  • New research or exclusion orders showed:
    • Not being used in practice
    • No. of applicants: 1% of family law cases concerned exclusion order from 6 Sheriff Courts
    • Out of 34 women, 3 applied for exclusion orders and not used as originally intended to protect women from domestic abuse
      • Used to keep perpetrator out of the home after they had already left

–          Does it matter?

  • Attitudes by Courts untested
  • Why do they not work?
    • Traditional dichotomy of family home as a private safe domain a myth
  • Should they be amended again?
    • Looking at Australia
      • Same situation, but effective when used
      • Distance not always security; not enough to just have these orders
    • Needs to be more advice, assistance, support, evidence, how it works, process, timescale, outcomes
      • Needs to be public knowledge
      • Awareness by advocates and advisors
      • Also needs to be physical security provided and police response available
      • Time to think needs too for applicants

–          What can we learn from the past?

  • Integrated approach
  • Instead of distinctions between criminal and family law, merging of the two
  • Make more accessible option (Exclusion Order)



Helen Sneddon: (For Clare) Do you have a view of how effected when move to the 1 4?

–          Comes down to money; task force works well but need financial support

Sybil Gardner: (For Clare) Talking about stats new community payback order will make a difference?

–          Don’t know, recent order; evidence of some monetary penalties and fines, but probation was still dominant

–          Address behaviour and provide interim protection but a problem of access

–          Problem with waiting

–          Community payback order also provides supervision of the perpetrator and that suggest evidence of success and it’s penalty of imprisonment if caught anomaly in the CPO because probation order meant good behaviour, but if perpetrator breaches a CPO it can only be a breach of non-compliance not another instance of abuse— no good behaviour element; should be added by Sheriffs

  • Still early days of the order

–           Excited about the exclusion order, but still feared by abused women as to effectiveness

  • Alternative is the civil restriction order which has a tag to keep husband away from family home


Liz Robertson: Are today’s presenters willing to make presentations available?

–          Yes.  Data will be circulated Centre for Gender History Website