Article from Gay Times 07/04/20
I have been successfully practising as a Barrister for over 20 years at the English bar and yet only once have I represented a client who was in a same sex relationship, and was seeking protection from the Family Court for an injunction to prohibit their partner from using or threatening violence against them.
There are ordinarily two hearings in such a scenario: the first is an urgent hearing where I accompany the victim seeking the urgent assistance and make representations on their behalf to the Judge. There is then a second hearing where the victim and the alleged perpetrator attend, with the latter being given the opportunity to say whether s/he/they wanted to contest the Order. In this case, neither party attended the second hearing and I never heard from my client again.
I have often wondered over the years why I have never represented more lesbian or gay clients seeking protection from an abusive partner. Seemingly, same sex relationships aren’t infected in the same way as heterosexual ones are by the poisons that infect and create the virus that is domestic abuse; for example, alcohol, drugs, stress, or a personality disorder. Perhaps it’s the same phenomenon that exists in the football sporting world where there are no known homosexual premier league players, nor for that matter, in any other country’s equivalent football league!
Although, my instinct, in both cases, tells me that this simply cannot be right, in my search for an evidential basis to this answer, I can only identify scant material that no Court of Law would be satisfied by. There is of course hearsay evidence, listening to two homosexual members of my family talk, I get to ‘hear’ things all the time, but you don’t have to be a lawyer to know how unreliable hearsay evidence can be.
The data I have been able to collate tells me this: that 1 in every 4 lesbians and up to half of gay men have been a victim of domestic abuse at one time in their adult lives and that this figure is nearly at 80% if you are a transgender. The Office for National Statistics collated “experimental” data that informed the reader as of 2017: 1.1 million people over 16 identified themselves as LGB (there is currently no data for those identifying as transgender) out of a UK population aged 16 or over of 52.8 million, just 2% of the population.
However, what do the figures tell us about right now for LGBTQ victims? Sadly nothing. If you were heterosexual I would be able to tell you that every domestic abuse charity in England and Wales has seen a rise in calls to their helplines and in daily visits to their websites (Refuge has recorded a 25% rise in calls and over 100% rise in daily visits to their website). I could even tell you with (disturbing) confidence that this rise has been recognised across the world, but the LGBTQ victim’s voice remains shrouded.
Perhaps those suffering the abuse in same sex relationships do not believe that they are victims? Many victims are manipulated and or brainwashed into believing their circumstances are either a fault of their own making or just a normal part of the ups and downs that come with being in a loving relationship. Many heterosexual victims of domestic abuse don’t consider themselves to be victims, but only seek assistance due to a statutory body intervening such as Social Services, hospital or the police. Even if you do realise something is wrong, let’s be frank, you are gay, which means you are more likely to feel unsupported or unable to seek assistance from those statutory bodies whose job it is to protect you.
I understand that there are also times when your partner, who may not be openly gay, or if they are are, find themselves being placed under significant negative pressure because of it, and who will lash out due to that pressure. No doubt something you can sympathise with. Obviously, you may not be openly gay, and I don’t imagine that this is the way you would want your relationship to be outed.
However, heterosexual victims of domestic abuse, who feel powerless and dejected have been able to find a strong respected voice. It’s time for those in same sex relationships to find that voice too and are the Family Courts a part of that strong vote – absolutely.
Recognising you are a victim
This really is the first step in seeking help. Safe Lives, a charity set up to end domestic abuse, undertook its own research and discovered that on average medium risk victims live with their abusers for 3 years whilst high risk victims stay for just over 2 years before seeking assistance and that victims will suffer at least 50 incidences of abuse before seeking help.
Does your partner constantly check up on you, wanting to know your movements and have access to your phone and/or emails? Does your partner regularly accuse you of flirting or actively pursuing romantic attention from others? Does your partner belittle you, try to humiliate you or even hit you? Maybe you have even tried to change your behaviour so as not to suffer your partner’s abusive behaviour? If you’ve answered yes to any of these questions then perhaps you are a victim of domestic abuse, but now what?
Sometimes it’s those nearest and dearest who are hardest speak too. Perhaps you have painted a rosey picture of your relationship that is far from the truth, even so open up, you will need all the help and strength you can get once you have made the decision to leave. Often the decision isn’t immediate but an idea formulated over weeks or months, but when it finally hits you need to know you have someone and/or somewhere you can go that will mean you are safe.
Once you have identified that safe haven the next step is to understand what options are available to you to ensure you are protected from your ex, wherever you happen to be, for the foreseeable future.
If you call or report your abuse to the police then there are a number of things they can do to assist. For example, they can send a harassment warning letter, or even issue a Domestic Violence Prevention Notice or Order. This type of intervention will give you immediate protection for yourself and even your home for up to one month.
If your housing situation is more complicated or you think you will need protection for longer then you will need to come to Court, either by the CPS prosecuting your abuser through the criminal Courts, or by you instructing a Barrister or a Solicitor to seek a Non Molestation Order (an injunction) and or an Occupation Order in the Family Courts.
Obviously it’s incredibly nerve racking going to Court, and if it’s a criminal matter then, in the case of domestic abuse, neither you or the alleged perpetrator’s identity will be anonymised and it will take months and months before the trial is concluded. In a Family Court, the assistance offered can be immediate as I alluded to at the beginning of this article, and more importantly, confidential. The first hearing is treated as urgent and therefore you can ‘attend’ the Family Court by yourself or with a representative, and as long as the evidence is strong enough, you can immediately obtain a Non Molestation Order protecting you wherever you may be. The other important thing to note about a Non molestation Order is that the police will also get a copy so, if you need to call them, they will be able to arrest your abusive partner for breach of that Order as opposed to having to identify a particular criminal offence, making the criminal process more straightforward.
At the second Non Molestation hearing, the Applicant must ‘attend’ to pursue the continuation of the Order which could be made final at that hearing. Most alleged perpetrators do not bother attending that hearing and so as long as you can prove your ex had notice of the hearing, then a final Order will be made and you will have the protection fo the Family Court for at least 6 months. This protection can remain in place even if you decide to pursue a criminal hearing too.
Obviously the COVID-19 pandemic has meant a dramatic change in the way Courts now administer justice. If you require an urgent hearing in a Family Court you will no longer need to attend Court in person. Such hearings will be conducted over the phone, frankly, making the whole process even easier in my opinion, because you could do everything you need to do without leaving your safe haven.
Whilst a Non Molestation Order (injunction) protects you wherever you may be, an Occupation Order specifically protects the place you are living. Most victims flee domestic abuse, leaving their home and personal belongings, but this doesn’t have to be the case. Whether the home is owned by you, jointly with your partner, solely by them or it’s rented, you can still obtain an Order from the Court forbidding your ex from returning, entering or attempting to enter the relevant property for up to six months. It is even possible, where the evidence exits, for the Court to make an Order for your ex to continue to make payments towards the maintenance of this home for the duration of the Order.
Whilst you can apply for a Non Molestation Order by yourself, and people do, it is so important to ensure the evidence that the Court requires is there. An Occupation Order is far more complicated and so I would strongly recommend you seek legal advice if you think this is something that you need. It’s true that lawyers can be expensive, but if you use us correctly, perhaps for an hour or two’s worth of advice to ensure your applications are legally sound or to attend to represent you at the first hearing, then that will be money spent wisely. Of course you may be eligible for legal aid or a contribution towards your fees. You will only find this out if you speak to a lawyer.
Most refuges have links with reputable law firms/Barristers and so can assist you in identifying one that would be right for you. Some refuge staff even volunteer to support you through the Court process so leaving your abusive ex doesn’t have to be a hurdle overcome on your own.
If you need assistance:
Or https://lgbt.foundation/domesticabuse and their helpline: 03453303030.
Paula Rhone-Adrien is a renowned Family Law Barrister with over 20 years of experience.
Keep up to date with her journey on Instagram @familylawguruuk.