Though it’s still early in January, 2025 is already set up to be a busy year for family law, with HMCTS having a number of pilot schemes running throughout the country to address some of the concerns raised in the governments’ 2020 Harm Review. One of which, governed by the Domestic Abuse Act 2021 (DAA 2021), was rolled out on 27th November 2024 for Domestic Abuse Protection Orders (‘DAPO’) to supplement the new Domestic Abuse Protection Notice (‘DAPN’).
What is a DAPN and DAPO?
The DAPN has been created to provide reported victims of domestic abuse with immediate protection to prevent the alleged perpetrator from contacting or approaching them. A DAPN can be made if the senior police officer has reasonable grounds for believing that the accused perpetrator has been abusive towards the complainant, and believes it is necessary to give a notice to protect.
A DAPN sets out that the accused perpetrator of domestic abuse may not contact the complainant or come within a specified distance.
An example would be your ex-partner subjected you to domestic abuse which you then reported to police and they are then issued with a DAPN not to text you anymore or to come to your home.
A DAPN allows an officer to arrest an accused perpetrator without a warrant if they have reasonable grounds for believing the notice has been breached. If arrested they will be held in custody for up to 24 hours to allow for them to be brought before a magistrate’s court in accordance with normal criminal procedure.
They last for 48 hours only, at which point a DAPO should be considered.
A DAPO extends protection for whatever period specified, with the caveat that electronic monitoring cannot extend beyond 12 months.
A DAPO is intentionally very flexible and can be tailored to fact specific issues to provide alleged victims as much protection as necessary. They can prevent the alleged perpetrator from doing anything described in the order and/or may require them to act as set out in the order. This can include preventing them from contact or coming within a specified distance of the reported victim. They can be compulsive orders requiring attending a drug/alcohol misuse programme, undertaking assessment and being subjected to electronic monitoring. If the subject of the order is required to do something then the order must specify who is supervising the compliance with this requirement. They can also extend to preventing the alleged perpetrator from evicting a reported victim from a property and prohibiting the alleged abuser from entering a property.
A DAPO will always include a mandatory notification requirement for the alleged perpetrator to notify the police of their current address.
A breach of a DAPO is a criminal offence, for which the maximum sentence is 5 years imprisonment and/ or a fine. There have already been a number of cases where breaches have resulted in custodial sentences.
Who can apply for a DAPN or DAPO?
Anyone who purports to have been a victim of domestic abuse where the following conditions apply. In order to apply for a DAPN/DAPO the accused perpetrator must be over 18 and the reported victim must be over the age of 16.
The accused perpetrator and reported victim must be ‘personally connected’ as set out in the Domestic Abuse Act 2021, section 2(1)
- they are, or were, engaged, married/ civil partners to each other
- they are, or have been, in an intimate personal relationship with each other
- they have or previously had a parental relationship to the same child
- they are relatives (as defined in s63(1) Family Law Act 1996)
This is much broader than the connected persons test required for Non-Molestation Orders and Occupation Orders.
It is not just victims who can apply for one, the police and third parties can also apply on the reported victim’s behalf. Of huge significance is that this can be done with or without the reported victim’s consent. Again, this was not previously a feature of orders available to the court so represents
The High Court and the Family Court can make a DAPO against a person during any family proceedings.
There is no cost to an application under the pilot scheme, though it’s not known if this will continue if they are rolled out nationally. Legal aid is available under a means and merits tests for both alleged perpetrators and reported victims.
The legal test
The court will grant these orders if it is satisfied on the balance of probabilities that the alleged perpetrator has been abusive towards the reported victim AND that the order is necessary and proportionate to protect from the risk of domestic abuse (DAA 2021 s32(2) & (3)). The court must consider the welfare of any relevant children, the opinion of the reported victim and any relevant occupant (DAA 2021 s33).
It is noted that where the Court considers it ‘just and convenient’ it can make a DAPO without notice to the alleged perpetrator. In determining this, the Court must be satisfied that there is a risk that if the orders are not made immediately the alleged perpetrator would cause significant harm to the reported victim or would prevent the reported victim from pursuing a protective order.
Crucially, they can be applied for at any stage; irrespective of arrest, during an investigation through to post-conviction.
Can they be challenged?
An alleged perpetrator may apply for variation or discharge of the DAPO. To do so, the Court must hear from any relevant ‘Chief Officer of Police’ (Defined by DAA 2021 s28(4)) who wishes to be heard or from the reported victim if they are applying for its removal. The Court must consider the same requirements as to make the order; welfare of any relevant children, the opinion of the reported victim and any relevant property occupant.
DAPO should, as far as practicable, avoid conflict with the alleged perpetrators religious beliefs, work or education. Should they conflict with any of these factors, a variation may be required.
It is noteworthy that, when reviewing an application to vary or discharge, the court may include an additional requirement in the order or extend the period the order, if it considers it necessary.
The Current State of Play
The programme is currently operating as a pilot scheme within limited jurisdictions. The Police forces involved with the pilot DAPN/DAPO scheme are Greater Manchester Police, the Metropolitan Police (in the London boroughs of Croydon, Bromley and Sutton) and the British Transport Police. The scheme is being further rolled out early this year to North Wales Police and Cleveland Police.
The alleged perpetrator must live within the area of the participating police forces in order for the order and notice to be available to those who may seek its protection.
What does this mean for the family court?
It is clear that these notices and orders are being trialled to address the pitfalls currently experienced by those who seek Non-Molestation Orders, Occupation Orders and Restraining Orders. They are likely to lead to both Non-Molestation Orders and Occupation Orders being left behind, as their requirements are far stricter, their powers significantly narrower and they require costly stand-alone applications to the family court.
For orders within existing private children proceedings, DAPO’s are again likely to be preferred over previous available orders. DAPO’s have the potential to expedite issues within existing private children matters, compel an alleged perpetrator to undertake work and narrowing down the issues that the court must grapple with. However, it remains to be seen just how enthusiastic the Court will be to use their new powers or how eager Cafcass may be in recommending them.
It may also be of concern that, while the burden of proof still firmly rests with the applicant, these new powers give scope for far reaching orders to be made without notice and with minimal input from the alleged perpetrator. This could create a very hostile starting point for parties in a private children matter, where allegations of abuse are fiercely contested or made by both parties. For example, if a DAPO was made at the commencement of proceedings, would that unfairly prejudice the parent that they are made against until allegations are dealt with fully by the court?
Previously, when faced with a Non-Molestation or Occupation Order, undertakings have been a form of agreed resolution. There is no reference to them within DAA 2020 so it appears that they would no longer be an available alternative to a DAPO. This could have a negative impact of causing allegations to be litigated where previously parties reached an amicable resolution.
As the pilot is more widely trialled, we will form a better understanding of courts approach to a DAPO and how they feed into changes made in their sister pilot schemes, for an integrated domestic abuse courts and the introduction of the Pathfinder model which aims for a less acrimonious approach to proceedings. At present, the most recent government guidance was issued March 2024 but further updates are expected as the pilot expands this year.
