As family lawyers we deal with cases where there is an overlap with criminal law. This is particularly so in cases where there are allegations of domestic abuse between spouses and partners. An abusive partner may be guilty of varying offences – assault, harassment, inflicting bodily injury, sexual offences and many others. More recently, family lawyers have been grappling with the criminal offences of coercive and controlling behaviour. These are two separate abusive behaviours, insidious in nature, which can be difficult to identify because they often involve a series of acts, sometimes seemingly small and inconsequential, but which added together are hugely harmful.
The criminal justice system will focus on the punishment of offenders but the procedure up until an offender is charged, let alone prosecuted, can be long winded and sadly often unsatisfactory. If an offender is charged, the burden is on the prosecution to prove their case ‘beyond reasonable doubt’. That requires, effectively, certainty of guilt.
Civil law steps in to provide much needed immediate protection in many cases and this is in no way dependent upon the outcome of a criminal investigation. As family lawyers, we can help victims of domestic abuse apply to the Court for protective orders such as:
• A non-molestation Order – to prevent an abusive partner from acting in a harmful way. It is worth noting that these Orders can relate to a significant range of behaviours – not just physical attacks or violence, but pestering, harassment, communication and others.
• An occupation Order – to regulate the occupation of the family home – usually obtained to enforce one person’s right to remain in or return to the family home or to require one person to leave the family home.
When a Judge considers an application of this nature, they will consider whether the relevant facts are proved ‘on the balance of probabilities’ – i.e. is it more likely than not that they are asserted. This means a much lower level of certainty is required and that is as it should be, in my submission.