Domestic Abuse Bill (HC Bill 422)
PART 1 continued CHAPTER 3 continued
(1)
In this Chapter a “domestic abuse protection order” is an order which, for the
25purpose of preventing a person (“P”) from being abusive towards a person
aged 16 or over to whom P is personally connected—
(a) prohibits P from doing things described in the order, or
(b) requires P to do things described in the order.
(2) A domestic abuse protection order may be made—
(a) 30on application (see section 25), or
(b) in the course of certain proceedings (see section 28).
(3)
Section 29 sets out the conditions for making a domestic abuse protection
order.
25 Domestic abuse protection orders on application
(1)
35A court may make a domestic abuse protection order under this section against
a person (“P”) on an application made to it in accordance with this section.
(2) An application for an order under this section may be made by—
(a) the person for whose protection the order is sought;
(b) the appropriate chief officer of police (see subsection (4));
(c) 40a person specified in regulations made by the Secretary of State;
(d)
any other person with the leave of the court to which the application is
to be made.
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(3)
Where P is given a domestic abuse protection notice by a member of a relevant
police force under section 19, the chief officer of police in relation to that force
must apply for a domestic abuse protection order against P.
(For further provision about such applications, see section 26.)
(4) 5The appropriate chief officer of police is—
(a)
in a case where subsection (3) applies, the chief officer of police referred
to in that subsection;
(b) in any other case, any of the following—
(i)
the chief officer of police of the force maintained for any police
10area in which P resides;
(ii)
the chief officer of police of any other force maintained for a
police area who believes that P is in that police area or is
intending to come to it;
(iii) the Chief Constable of the British Transport Police Force;
(iv) 15the Chief Constable of the Ministry of Defence Police.
(5)
An application for an order under this section must be made to the family
court, except where subsection (6) or (7) applies.
(6)
An application made by a chief officer of police for an order under this section
must be made by complaint to a magistrates’ court.
(7) 20In a case where—
(a)
P, and the person for whose protection the order is sought, are parties
to any family or civil proceedings, and
(b)
the court would have power to make a domestic abuse protection order
under section 28 in those proceedings without an application being
25made,
an application for an order under this section may be made in those
proceedings by the person for whose protection the order is sought.
(8)
Where an application is made to a magistrates’ court in accordance with this
section—
(a) 30the magistrates’ court may adjourn the hearing of the application;
(b)
on the hearing of the application, section 97 of the Magistrates’ Courts
Act 1980 (summons to witness and warrant for arrest) does not apply
in relation to the person for whose protection the order is sought,
except where the person has given oral or written evidence at the
35hearing.
26 Applications where domestic abuse protection notice has been given
(1)
This section applies where, as a result of a person (“P”) being given a domestic
abuse protection notice under section 19, a chief officer of police is required by
section 25(3) to apply for a domestic abuse protection order against P.
(2)
40The application must be heard by the magistrates’ court not later than 48 hours
after the notice was given to P.
(3)
In calculating when the period of 48 hours mentioned in subsection (2) ends,
the following days are to be disregarded—
(a) any Sunday,
(b) 45Christmas Day,
(c) Good Friday, and
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(d)
any day which is a bank holiday in England and Wales under the
Banking and Financial Dealings Act 1971.
(4) P must be given a notice of the hearing of the application.
(5)
The notice under subsection (4) is to be treated as having been given if it has
5been left at the address given by P under section 22(4).
(6)
But if the notice has not been given because P did not give an address under
section 22(4), the court may hear the application if satisfied that the chief officer
of police has made reasonable efforts to give P the notice.
(7)
If the court adjourns the hearing of the application, the notice continues in
10effect until the application has been determined or withdrawn.
(8) If—
(a)
P is brought before the court at the hearing of the application as a result
of P’s arrest by virtue of section 23(1) (arrest for breach of domestic
abuse protection notice), and
(b) 15the court adjourns the hearing,
the court may remand P.
27 Remand under section 26(8) of person arrested for breach of notice
(1) This section applies where—
(a)
as a result of a person being given a domestic abuse protection notice
20under section 19, a chief officer of police has applied for a domestic
abuse protection order against the person, and
(b) the magistrates’ court remands the person under section 26(8).
(2)
In the application of section 128(6) of the Magistrates’ Courts Act 1980 to such
remand, the reference to the “other party” is to be read as a reference to the
25chief officer of police who applied for the order.
(3)
If the court has reason to suspect that a medical report will be required, the
power to remand the person may be exercised for the purpose of enabling a
medical examination to take place and a report to be made.
(4)
If the person is remanded in custody for that purpose, the adjournment may
30not be for more than 3 weeks at a time.
(5)
If the person is remanded on bail for that purpose, the adjournment may not
be for more than 4 weeks at a time.
(6)
If the court has reason to suspect that the person is suffering from mental
disorder within the meaning of the Mental Health Act 1983, the court has the
35same power to make an order under section 35 of that Act (remand to hospital
for report on accused’s mental condition) as it has under that section in the case
of an accused person (within the meaning of that section).
(7)
The court may, when remanding the person on bail, require the person to
comply, before release on bail or later, with any requirements that appear to
40the court to be necessary to secure that the person does not interfere with
witnesses or otherwise obstruct the course of justice.
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28 Domestic abuse protection orders otherwise than on application
(1)
A court may make a domestic abuse protection order under this section in any
of the cases set out below.
Family proceedings
(2)
5The High Court or the family court may make a domestic abuse protection
order against a person (“P”) in any family proceedings to which both P and the
person for whose protection the order would be made are parties.
Criminal proceedings
(3)
Where a person (“P”) has been convicted of an offence, the court dealing with
10P for that offence may (as well as sentencing P or dealing with P in any other
way) make a domestic abuse protection order against P.
(4)
But subsection (3) does not apply where the Court of Appeal is dealing with a
person for an offence.
(5)
A court by or before which a person is acquitted of an offence may make a
15domestic abuse protection order against the person.
(6)
Where the Crown Court allows a person’s appeal against a conviction for an
offence, the Crown Court may make a domestic abuse protection order against
the person.
Civil proceedings
(7)
20The county court may make a domestic abuse protection order against a person
(“P”) in any relevant proceedings to which both P and the person for whose
protection the order would be made are parties.
(8)
In subsection (7) “relevant proceedings” means proceedings of a description
specified in regulations made by the Secretary of State.
29 25Conditions for making an order
(1)
The court may make a domestic abuse protection order under section 25 or 28
against a person (“P”) if conditions A and B are met.
(2)
Condition A is that the court is satisfied on the balance of probabilities that P
has been abusive towards a person aged 16 or over to whom P is personally
30connected.
(3)
Condition B is that the order is necessary and proportionate to protect that
person from domestic abuse, or the risk of domestic abuse, carried out by P.
(4) It does not matter—
(a)
whether the abusive behaviour referred to in subsection (2) took place
35in England and Wales or elsewhere, or
(b)
whether it took place before or after the coming into force of this
section.
(5)
A domestic abuse protection order may not be made against a person who is
under the age of 18.
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30 Matters to be considered before making an order
(1)
Before making a domestic abuse protection order against a person (“P”), the
court must, among other things, consider the following—
(a)
the welfare of any person under the age of 18 whose interests the court
5considers relevant to the making of the order (whether or not that
person and P are personally connected);
(b)
any opinion of the person for whose protection the order would be
made—
(i) which relates to the making of the order, and
(ii) 10of which the court is made aware;
(c)
in a case where the order includes provision relating to premises lived
in by the person for whose protection the order would be made, any
opinion of a relevant occupant—
(i) which relates to the making of the order, and
(ii) 15of which the court is made aware.
(2)
In subsection (1)(c) “relevant occupant” means a person other than P or the
person for whose protection the order would be made—
(a) who lives in the premises, and
(b) who is personally connected to—
(i) 20the person for whose protection the order would be made, or
(ii) if P also lives in the premises, P.
(3)
It is not necessary for the person for whose protection a domestic abuse
protection order is made to consent to the making of the order.
31 Making of orders without notice
(1)
25A court may, in any case where it is just and convenient to do so, make a
domestic abuse protection order against a person (“P”) even though P has not
been given such notice of the proceedings as would otherwise be required by
rules of court.
(2)
Subsection (1) does not apply in relation to the making of an order under
30section 25 on an application made in accordance with subsection (3) of that
section (see instead section 26(4) to (6)).
(3)
In deciding whether to exercise its powers under subsection (1), the court must
have regard to all the circumstances, including—
(a)
any risk that, if the order is not made immediately, P will cause
35significant harm to the person for whose protection the order would be
made,
(b)
in a case where an application for the order has been made, whether it
is likely that the person making the application will be deterred or
prevented from pursuing the application if an order is not made
40immediately, and
(c) whether there is reason to believe that—
(i)
P is aware of the proceedings but is deliberately evading
service, and
(ii)
the delay involved in effecting substituted service will cause
45serious prejudice to the person for whose protection the order
would be made.