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    A Worrying Rise in the Use of Undertakings?

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    A Worrying Rise in the Use of Undertakings?

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    For some time now I, and several of my colleagues at NCDV, have been noticing victims and survivors of domestic abuse are being fobbed off in the civil/family courts with Undertakings from perpetrators as opposed to securing a much more black-and-white Court Order against them such as a non-molestation order.

    We are really concerned at this development, which we see as retrograde for victims’ rights – and which may be a case of overburdened Courts seeking to rush through and deal with a backlog of cases which are the result of the COVID-19 pandemic.

    An Undertaking is supposed to be a solemn and binding agreement made with the Court and/or with the other party in Court proceedings.

    It may be that an Undertaking is a promise a perpetrator makes to refrain from certain actions (which might otherwise be set out in a Court Order) or, indeed, a promise he or she makes to do something active.  So far, so good.  Sometimes an Undertaking can be made on top of a Court Order but, increasingly, it is being offered instead of one – and there’s the problem.  Even more concerning is when the court encourages a victim/survivor to accept cross undertakings, whereby the victim/survivor also promises to refrain from certain actions – whether they have admitted to doing them in the first place, or not!

    Those who favour the use of Undertakings say, quite rightly, that they are legally enforceable.

    But unlike a Court Order, such as a non-molestation order, where a breach of the terms of the order is automatically a criminal offence that can lead to a criminal record, and where police are obliged to arrest the perpetrator as soon as they become aware of it, enforcing a broken Undertaking actually takes victims back to yet another uncertain bout of legal wrangling.

    To enforce an Undertaking the applicant has to lodge a fresh application for the perpetrator to be committed to prison, backed up by an affidavit.  This affidavit has to detail legally all the ways in which the Undertaking has been breached.   Normally, however, the perpetrator will be also given the opportunity to dispute these allegations – which, of course, most do!

    Only if the Court believes that an Undertaking has actually been broken can it imprison the wrongdoer (or impose a fine).  But even if and when the perpetrator is sent to prison, the perpetrator has the chance to ‘purge’ his or her contempt by making a formal apology backed up by an affidavit.  If successful in purging the contempt, the perpetrator may get an immediate or later release.  And all of this takes time.  Time that victims and survivors of domestic abuse do not have if there has been a recent incident.

    Our advice here is crystal clear: don’t be fobbed off by an Undertaking which, ultimately, relies on trust rather than police enforcement.  As the Italians say: “It’s good to trust, but even better not to have to.”

    Sharon Bryan
    Head Of Partnerships & Development Of Domestic Abuse Services

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    By Fiona Bawden, Times Online (8th May 2007)

    “Steve Connor, a student at City Law School, is a man on a mission. Six years ago he was a fairly directionless 27-year-old. Today, as well as taking the Bar Vocational Course, he is chairman of the National Centre for Domestic Violence, a ground-breaking organisation that he dragged into existence after a friend could not get legal help to protect her from an abusive partner.

    Connor’s route to the Bar has been circuitous. In 2001 he returned from a year in Australia (he says that he would not dignify describing it as a gap year), and took a job as a process server in South London. The job (“I just saw it advertised in the paper”) was not quite as dull as it sounds. On one occasion he was threatened with a machete, on another, he was nearly stabbed by a man he had arranged to meet on Clapham Common to serve with a non-molestation order: “He’d seemed really friendly on the phone…”

    The turning point in his life came when a friend, who was being abused by her partner, turned to him for support. Connor went with her to the police. She did not want to press criminal charges so the police suggested that she visit a solicitor to take out a civil injunction. “We must have seen 12 solicitors in a morning. We just went from one to the next to the next to the next. Everyone was very eager to help until we sat down to fill in the forms for the legal aid means test,” he says. The woman, who had a small child, did not qualify for public funding. But, Connor says, her financial situation as it appeared on paper did not bear any relation to her financial situation in reality. “She had a part-time job and she and her partner owned their home. Yet she didn’t have any money. Her boyfriend was very controlling and controlled all the money; he kept the chequebooks and didn’t let her have access to the bank account.”

    The injustice of the situation got under Connor’s skin. “I just couldn’t believe that there was no help available to people who did not qualify for public funds but could not afford to pay.

    I just kept feeling that this must be able to be sorted if only someone would address it.”That “someone” turned out to be him.

    In 2002, thanks entirely to Connor’s doggedness, the London Centre for Domestic Violence was formed. It started out with him and a friend, but is now a national organisation, covering 27 counties, and has helped approximately 10,000 victims last year to take out injunctions against their partners.

    NCDV now has nine full-time staff, 12 permanent volunteers and has trained over 5000 law and other students as McKenzie Friends to accompany unrepresented victims into court. We have also trained over 8000 police officers in civil remedies available regarding domestic violence. The National Centre for Domestic Violence (NCDV) has branches in London, Guildford and Manchester and is on track to have branches in 16 areas within the next two years.

    NCDV specialises exclusively in domestic violence work and could be characterised as a cross between McDonald’s and Claims Direct. The high degree of specialisation means that its processes are streamlined: clients can be seen quickly and the work is done speedily and cheaply. “Sometimes, we will have one of our trained McKenzie Friends at a court doing 10 applications in one day,” Connor says.

    Clients are not charged for the service. NCDV staff take an initial statement: clients who qualify for legal aid are referred to a local firm; those that don’t get free help from the centre itself. It runs on a shoestring, heavily reliant on volunteers and capping staff salaries at £18,000 a year.

    Steve expects to qualify as a barrister this summer and hopes that having a formal legal qualification will give the centre added clout. “We are already acknowledged as experts and consulted at a high level, so I thought it would be helpful if I could back that up by being able to say I’m a barrister,” he says. He is just about to complete a one-year full-time BVC course at the City Law School (formerly the Inns of Court Law School) and, all being well, should be called to the Bar in July. Although Connor sees his long-term future as a barrister, he says that he has no immediate plans to practise. “I want to get NCDV running on a fully national level. Then I may take a step back and have a career at the Bar.”