ABSTRACT
Although the most common manifestation of domestic violence is physical assault, which is a criminal offence, there are many reasons why victims of such violence may wish to use the civil rather than the criminal law. Such reasons were given by the Women’s Aid Federation of England when giving evidence to the Home Affairs Committee:1
Prior to the introduction of statutory protection beginning in 1976, victims had only two forms of civil protection at their disposal. These two forms of protection co-existed alongside the statutory protection and will continue to protect those parties not covered by the Family Law Act (FLA) 1996. If proceedings are pending between the parties, the court has the jurisdiction to issue an injunction in those proceedings restraining the assailant from molesting, assaulting or interfering with the applicant. These proceedings are between married parties, for example for judicial separation or divorce. In respect of unmarried parties there lies an action in tort. Until recently, however, English law did not recognise a tort of harassment or molestation per se, and thus an injunction between unmarried parties would only be issued to support an existing legal or equitable right. Furthermore, this right could not be protected by issuing an injunction restraining a defendant from being in the vicinity of the plaintiff’s property. In Patel v Patel2 a father-in-law originally obtained a non-molestation injunction against his son-in-law which prevented the defendant from molesting the plaintiff, trespassing on the plaintiff’s property or approaching within 50 yards of the property. The exclusion from the area was later deleted by a county court judge, an action
upheld by the Court of Appeal which held that a defendant could only be excluded from an area if a tort had been or was likely to be committed. Merely being within the vicinity of the property was not a tort. Furthermore, Waterhouse J held that there was no tort of harassment.3 A later Court of Appeal, however, held that an injunction would be issued if the conduct complained of amounted to another tort such as trespass or conduct which was calculated to impair the plaintiff’s health (Burnett v George4). The Court of Appeal in Khorasandjian v Bush5 developed the law further. In this case the parties had never cohabited and the plaintiff lived with her parents. The conduct complained of consisted of unwanted phone calls. The Court of Appeal granted an injunction despite the fact that the plaintiff had no proprietary interest to protect. Dillon LJ, referring to Waterhouse J in Patel, stated that he found it difficult to say that there was no tort of harassment, particularly as the court in Patel had issued a non-molestation injunction. While appearing to accept that a tort of harassment exists, however, Khorasandjian did not deal with the problem of exclusion from an area in which the dwelling house of the plaintiff was situated.
