Supreme Court extends meaning of domestic violence

26 January 2011 by

Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3 – Read judgment / press summary

The Supreme Court has unanimously ruled that “domestic violence” in section 177(1) of the Housing Act 1996 includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.

The effect of the decision is that anyone threatened with domestic violence, within the Supreme Court’s wider meaning, will not be expected to remain in local authority housing with their abuser. Although the judgement, given by Baroness Hale, did not mention human rights, it clearly impacts on article 8 rights to family life, and alongside the recent decision in Pinnock, could greatly increase the number of people to which local authorities are obliged to provide housing.

The following is adapted from the Supreme Court press summary.

Under section 193 of the 1996 Act, where a local housing authority are satisfied that an applicant is homeless and did not become homeless intentionally, they must make accommodation available for the applicant, unless they refer the application to another local housing authority.

The effect of section 177(1), which has been called a “pass-porting” provision, is that a person who is at risk of the violence to which it applies is automatically homeless, however reasonable it might in other respects be for her to remain in the accommodation. Questions of local housing conditions or shortages do not come into it. Another important consequence of section 177(1) is that the person cannot be treated as intentionally homeless.

In August 2008, the Appellant left the matrimonial home in which she lived with her husband, taking her two young children with her, and sought the help of the local housing authority. In interviews with housing officers, she complained of her husband’s behaviour, which included shouting in front of the children, and stated that she was scared that if she confronted him he might hit her.

The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. On a review, the panel noted that the root cause of her homelessness was not that she had fled after a domestic incident. The panel believed the probability of domestic violence to be low. They concluded that it was reasonable for her to continue to occupy the matrimonial home.

Reasons for the judgment

Numbers in square brackets relate to the numbered paragraphs of the judgment

“Physical violence” is not the only natural meaning of the word “violence”. Another natural meaning is “strength or intensity of emotion; fervour, passion”. [19]

By the time of the 1996 Act, both international and national governmental understanding of the term “domestic violence” had developed beyond physical contact. There is certainly no doubt that the understanding of “domestic violence” has moved on now, as demonstrated by the definitions used in a 2005 Home Office publication ‘Domestic Violence: A National Report’ and in the 2006 Homelessness Code of Guidance for Local Authorities. [20] – [24]

“Violence” is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. The essential question is whether an updated meaning is consistent with the statutory purpose. The purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. [27]

The purpose of the legislation would be achieved if the term “domestic violence” were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, suitably adapted to the forward-looking context of sections 177(1) and 198(2) of the Housing Act 1996: “‘Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.” [28]

Lord Rodger could see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of deliberate conduct, that may cause her psychological, as opposed to physical, harm. To conclude otherwise would be to play down the serious nature of psychological harm. [46]

Lord Brown indicated his very real doubts that Parliament intended “domestic violence” to extend beyond the limits of physical violence but did not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. [48], [60].

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  1. Hin says:

    The comments about the balance of guilt are missing the point in this, aren’t they? That is, the invention of a new meaning for violence in this context.

    Not even in this that context is such an inversion justified, in fact, to the contrary, the judges should have been more subtle and careful. Lord Brown should have had the courage of his doubt and dissented.

    If I were cynical, I would suggest that they want to open up a new line of cases ready for litigation, on their new meaning to the word. “I was only trying to tell you how I felt, my dear.” “Don’t ‘my-dear’ me, you so-and-so, you are oppressing me with your feelings now. I don’t want your emotion any more, you may think you are only being passionate, I think I need an injunction.”

    We now have a new declension for the litigators:
    I feel
    You are emotional
    She, He, It is passionate.

    The ripples of this case have not yet been felt, but they will travel far.

  2. Lloyd Jenkins says:

    Your claim about 95% of domestic violence being perpetrated by men is unfounded:

  3. Hin says:

    Domestic violence is a scourge for many people, and a disaster for the children of families where it occurs. The extent of female violence against men is commonly underestimated, as the effects are ignored, and the causes misunderstood. But comparisons about the “guilt” of one gender as against another are not the point here.

    The judges are dealing with a complicated issue that has not been fully addressed by the law-makers in Parliament or dealt with properly by public authorities, for many years, so when this case came before them, they saw a need to Something. Relying on the legislature did not seem an option.

    But they are abusing language when they say:
    >> “Physical violence” is not the only natural meaning of the word “violence”. Another natural meaning is “strength or intensity of emotion; fervour, passion”. <<

    While much else in what they have decided makes sense, this sentence is dangerous nonsense. If they had said that violence, for the purposes of the law, includes direct or indirect, explicit or implicit threat of violence, whatever the terms used, or however expressed, that would surely be OK. But they have gone so much further and in a manner that invites yet more abuse of an already much abused word. They make it even more at risk of being devalued.

    Perhaps they had better look at that other undervalued skill: the good use of English. Because others are not bothered about meaning what they say or saying what they mean does not mean the Judges should follow that precedent.

    (I write as a former practitioner and campaigner in the field.)

  4. SarahLondon says:

    The ‘whole truth’ about domestic violence, is that it is almost never used as an ‘option out of a bad relationship’. I accept that there may be a very small proportion of men and women who foolishly choose to falsely claim that they are being abused by their partners as a way of removing the accused partner from their premises but this is a tiny minority.

    The facts are that 95%+ of domestic abuse occurs within intimate relationships where the perpetrator is a man and the victim is a woman. I stress ‘intimate relationships’ as this includes abuse by male parents, siblings, grandparents, uncles, in-laws, not just boyfriend/girlfriend and husband/wife relationships.

    In the UK there are dedicated support services for male victims of domestic abuse (for men who have experienced either same sex or opposite sex domestic violence) which include refuges, helplines, floating support and outreach services. The idea that a man can be abused physically and/or emotionally by an intimate male or female partner or family member is still a relatively new concept for society and it is therefore some way behind the more traditional image of domestic abuse i.e husband hitting his wife. But understanding of same sex intimate partner abuse is growing all the time, as are other aspects of domestic abuse such as honour violence, cyber-threats and the concept that abuse does not necessarily end when the relationship ends.

    I think if ‘gender feminist ideology’ really did control the domestic violence industry’ then every male perpetrator of domestic abuse would be tried without a jury, automatically found guilty and have his nuts chopped off behind the courthouse.

  5. Ray2447 says:

    Domestic violence will never end as long as the whole truth about it is misrepresented to comply with feminist ideology. American V.P. Biden recently called violence against women, “the very worst abuse.” The very worst abuse is valuing one life less than another for having been born the wrong gender. Under domestic violence law, the wrong gender is men. Shelter and services are virtually non-existent for male victims of domestic violence. Options out of a bad relationship, that women have, are often not available to men. Men wind up gender profiled and falsely accused by the taxpayer funded, domestic violence industry, because of gender feminist ideology controlling the d.v. industry. Men are often battered by domestic violence, and then battered again by the taxpayer funded, domestic violence industry as shown in “Los Misandry” at Youtube.

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