This clause concerns matters to be considered before making an order. Similar to the provisions at clause 21 in relation to a notice, clause 30 sets up particular matters, which the court must consider before making a domestic abuse protection order.
First, the court must consider the welfare of any person under the age of 18, whose interests the court considers relevant, in order to ensure that any safeguarding concerns can be appropriately addressed. The person does not have to be personally connected to the perpetrator and could, therefore, for example, be the victim’s child from a previous relationship.
The court must also consider the opinion of the victim as to whether the order should be made. As set out, however, in subsection (3), the court does not have to obtain the victim’s consent in order to make an order. We have already discussed why that is desirable. It enables the court to protect victims who may be coerced into withholding their consent, or who are fearful of the consequences should they appear to be supporting action against the perpetrator.
Where the order includes conditions in relation to premises lived in by the victim, the court must consider the opinion of any other person who lives in the premises and is personally connected to the victim or, if the perpetrator also lives in the premises, to the perpetrator. For example, if the perpetrator has caring responsibilities for a family member, the court would need to consider the family member’s opinion on the making of an order excluding the perpetrator from the premises.
I wonder whether the Government foresee a child being included in that instance. If it was an elderly relative, that is reasonable. But are we saying here—or perhaps it will be in the much-awaited guidance—that if a child was living in the house, their opinion might be sought?
Yes, I think it would be and I think that is appropriate. One thing that certainly the criminal law has done over the last 20 years is start to recognise that people under the age of 18 have views that are sometimes worth hearing. In the past, they were almost kept out of court, but now of course we try to facilitate their giving evidence. I would imagine that that would be the case in these circumstances and that a court would want to hear that.
It will be for the court to weigh up the different factors to come to its decision on whether a DAPO is necessary and proportionate in order to protect the victim from domestic abuse or the risk of it.