A plea for flexibility of definition
The government’s Transforming the Response to Domestic Abuse Consultation Response and Draft Bill January 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/772202/CCS1218158068-Web_Accessible.pdf has, as the bill’s clause 1, a definition of ‘domestic abuse’:
‘(2) Behaviour by a person (“A”) towards another person (“B”) is “domestic abuse” if—
(a) A and B are each aged 16 or over and are personally connected [as defined by cl 2], and
(b) the behaviour is abusive.
(3) Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));
(e) psychological, emotional or other abuse.
(4) “Economic abuse” means any behaviour that has a substantial adverse effect 15 on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.
(5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).’
The most extensive definition hitherto in any government instrument is probably that contained in Family Procedure Rules 2010 PD12J, para 3 which is in broadly similar terms – though with clear differences – to clause 1.
Meanwhile in a letter to the committee considering the bill, Harriet Harman, Chair of the Parliamentary Joint Committee on Human Rights, the Committee has set out its views on the bill, which include the question of the statutory definition of domestic abuse. The Committee suggests the above definition may leave some forms of domestic relationships outside the scope of what is required of the bill. They suggest the government should consider whether there are gaps in the bill’s definition.
‘Non-molestation’ and domestic abuse
This post reflects upon an area of law which is capable of expanding so fast – abuse on social media, international abduction and stranding – and proposes that the less prescriptive is the definition of domestic abuse, the better for those who may be subject to it. Two cases decided since the draft bill was published are set out below; and alongside them T (A Child)  EWCA Civ 1889,  2 WLR 1570,  1 FCR 149 emphasises a plea for flexibility of definition.
In T McFarlane LJ (now President of the Family Division) and the Court of Appeal were concerned with an appeal which found – contrary to what, till then, many (including the judge appealed from) might have thought – a new breadth to the ambit of what is now Family Law Act 1996 (FLA 1996), Pt 4 and the power of the family courts to make non-molestation orders (FLA 1996, s 42).
In Re T the court was considering an application by a local authority on behalf of a ten-year-old who was in their care and with foster parents. The child’s mother and her partner were threatening to disrupt the foster placement. McFarlane LJ was clear: there was no room for doubt that the court had jurisdiction to consider granting a non-molestation order for the protection of the child in this case under FLA 1996, s 42(2)(b). There were validly constituted family proceedings (s 63(1)) before the court, namely the local authority application under the inherent jurisdiction in respect of the child. That application had been made to obtain an injunction to protect the child and the foster carers.
Terminology and the non-molestation order
McFarlane LJ explained why he favoured a flexible terminology for ‘non-molestation’. FLA 1996, he said:
‘ … Does not contain any definition of 'molestation'. When called upon to do so, [the Court of Appeal] has consistently avoided giving a precise definition. In Horner v Horner  Fam 90, (1983) 4 FLR 50, Ormerod LJ said, at 93 and 51G, respectively: “… I have no doubt that the word “molesting” … does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.”’
That surely is the criterion which the bill should strive for: what degree of domestic abuse ‘calls for intervention of the court’. A low threshold can be proposed in statutory guidance (rather than fixed inflexibly by statute); and the family and Court of Appeal judges – that is the common law – can, surely, be relied on to develop and expand that guidance as society changes and, regrettably, the forms of domestic abuse develop accordingly?
McFarlane LJ continued:
‘ In C v C  EWCA Civ 1625 (unreported) 25 October 2001, Hale LJ (as she then was) held that the granting of a non-molestation injunction was justified in circumstances where the conduct complained of 'was calculated to cause alarm and distress to the mother'.
 In the decades that have followed those judicial utterances, those sitting in the Family Court have, on a day-by-day, case-by-case basis, deployed good sense and judgment in determining whether or not particular conduct amounts to ‘molestation’. In my view this court should continue to be very wary of offering any further precision in the definition.’
Molestation: flexibility of definition
Almost alongside publication of the draft bill, the Court of Appeal considered ‘transitional marriage abandonment’ in A (Children)  EWCA Civ 74 (1 February 2019). The court set aside a judgment of Keehan J set aside in child arrangements order proceedings where, they said, the judge had not dealt adequately with allegations that a mother had abused and ‘abandoned’ four children aged between 16 and 10. The stranding father’s evidence was doubted by Moylan LJ more than it had been by Keehan J.
‘Stranding’ (but not ‘transnational marriage abandonment’ in terms) is referred to in Practice Direction 12J para 3 as part of domestic abuse (see ); but whether they can be found in the bill must be a matter of doubt. Moylan LJ explained these terms as follows:
‘ The core feature of the concept of stranding or abandonment is the exploitation or the attempted exploitation by one spouse of the other's vulnerability or weakness to seek to ensure that they are not able to come to or return to the UK. As Peter Jackson J (as he then was) said in ZM v AM  EWHC 2110 (Fam), at , it can be the ‘opportunity’ the secure immigration status of one spouse and the insecure immigration status of the other gives ‘the former to exploit the latter's weakness’. However, as PD12J makes clear, it is based more generally on “controlling, coercive or threatening behaviour, violence or abuse”.’
In K (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction)  EWHC 466 (Fam) (1 March 2019), Williams J the Family Division was dealing with another stranding case – not easily instanced within the bill’s definition of domestic abuse; and not only was it stranding (which comes within the PD12J definition).
Both these cases take the reader back to Ormrod LJ cited above: that ‘molestation’, renamed domestic abuse, ‘…. applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court’. Can we not leave it at that; and allow the common law to develop, with published guidance, the forms of abuse which justify court protection for claimants?
David Burrows is the author of Children's Views and Evidence, Privilege, Privacy and Confidentiality in Family Proceedings.