Domestic Violence Orders Comparative Stance on Hong Kong and French Legislation amidst COVID-19 Crisis
As people have been working from home for weeks now and with children being home-schooled, things can get tense in the family home, especially in the small spaces we share in Hong Kong. A number of articles in SCMP, BBC, and CNN have featured articles indicating that there is an uptick in the number of cases of domestic violence as people shelter in place.
This is not merely due to the lockdown situation, but it is a societal phenomenon.
If you are a victim of domestic violence and your situation is urgent, call the police for assistance on 999.
For those who need non-urgent legal assistance, there is relief in the Domestic and Cohabitation Relationships Violence Ordinance (DCRVO or Ordinance), which came into force on 1 January 2010 for the purpose of providing “protection of persons from violence in domestic and cohabitation relationships”.
The DCRVO covers domestic violence between spouses, former spouses, cohabitants, and relatives. Same sex partners are also covered under the DCRVO. Only individuals identified in the legislation can seek an order under the DCRVO. Thus, violence in the workplace or between unrelated employees is not actionable under the DCRVO. Those individuals would have to seek relief through other legal channels.
Before granting an injunction under the Ordinance, the court must be satisfied that the applicant has been “molested”. There is no definition of molestation in the DCRVO, but the word is normally given a wide interpretation: in addition to physical and sexual assault, vexing, pestering, and annoying behaviour are all words that have been used to describe molestation.
Under the Ordinance, there are three orders: non-molestation, ouster, and re-entry. A re-entry order commands that the respondent permit the applicant to enter and remain in a location. An ouster order restrains the respondent from entering or remaining in residence or other specified area. A non-molestation order restrains the respondent from molesting the applicant. When issuing a non-molestation order, the court can order a respondent to participate in a programme aimed at changing his/her “attitude and behaviour”.
In France, you can also take the judicial route to obtain a Protection Order. This is possible even during lockdown. Hearings are still taking place, even if their numbers have been reduced.
The law applicable in France also dates back to 2010 but has been amended since then. The latest amendment to date is an Act dated 28 December 2019 which introduced significant measures to be able to act against violence within the family, including the notion of psychological hold.
The judicial protection order is the urgent proceeding set up to protect the victims of either physical or psychological domestic violence, even when there is no cohabitation, and includes protection in case of threats of forced marriages.
It is important to emphasise that in these proceedings the victim can withhold his/her address, and communicate with his/her lawyer and more importantly that the acts of violence do not have to be proven, nor is there a requirement for the victim to have pressed charges.
The protection order is brought before the family court judge, and is more efficient than the criminal route, since it:
- authorises the couple to live separately. In France, the rule is that the violent party will have to vacate the matrimonial home, even if he/she is the owner of the property.
- forbids the violent party from getting in contact with the victim.
- authorises the victim to withhold his/her address.
- restrains the violent party from going to certain places where the victim can usually be found, such as the vicinity of the place of work, of the children’s schools, or the local supermarket.
- orders the violent party to attend sessions to prevent domestic violence, or seek psychological assistance.
The latest amendment in the French law has introduced the possibility of an electronic bracelet with a tracking device, but we are waiting for a decree with details on how it will be applied.
In the protection order proceedings, the family court judge will retain his more tradition role with regards to financial support, maintenance, and custody of the children. The violent party can be deprived of his parental rights by the judge.
It is important to note that, statistically speaking, women are more likely to be victims of domestic violence, but men do make up approximately 15% of reported cases in Hong Kong in 2018. In France in the same year, 88% of victims were women, only 10% pressed charges, and only 1% of cases ended in a conviction.
Individuals in need may look up community resources in Hong Kong, information of the French government or listen to a podcast in French on violence and separation of expatriate couples.
If you would like to consult for legal assistance, please do not hesitate to contact the authors Kimberly Ann Dasse and Sarah Jane Tasteyre. At JC Legal, we are available to discuss any concerns you may have in confidence in Cantonese, Mandarin, English and French.
Sarah Jane is a French Lawyer who practices family law in Hong Kong and England at JC Legal, and deals on a daily basis with cross-border cases.
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