Yemshaw v. London Borough of Houslow

[2009] EWCA Civ 1543
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 2009
Court: The Supreme Court of the United Kingdom
Health Topics: Child and adolescent health, Mental health, Violence
Human Rights: Right to bodily integrity, Right to housing
Tags: Assault, Children, Depression, Domestic abuse, Domestic violence, Minor, Trauma, Violence against women

The appellant approached the housing authority for help in finding alternate accommodation for her. Under Section 177(1) of the Homelessness Act (2002), it was not reasonable for a person to remain in their house if there was a possibility of domestic or other violence. The appellant’s husband was mistreating her, verbally abusing her and would threaten to hit her and take the children away. The housing authority refused assistance, as there was no physical violence.

The Supreme Court remitted the case back to the London Borough of Houslow for fresh consideration. It stated that the Act was specifically amended in 2002 to include other violence and therefore it included violence other than physical violent acts. It further relied on the Committee on the Elimination of Discrimination against Women’s General Recommendation no. 19, which includes sexual, mental, psychological, mental and physical harm under the definition of gender based violence. The Court further stated that the definition of violence has to be expanded since domestic violence had the tendency to escalate precipitously.

There may also be a concern that an expanded definition is setting the threshold too low. The advantage of the definition adopted by the President of the Family Division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour. It has been recognised for a long time now that it is dangerous to ignore what may appear to some to be relatively trivial forms of physical violence. In the domestic context it is common for assaults to escalate from what seems trivial at first. Once over the hurdle of striking the first blow, apologising and making up, some people find it much easier to strike the second, and the third, and go on and on. But of course, that is not every case. Isolated or minor acts of physical violence in the past will not necessarily give rise to a probability of their happening again in the future. This is the limiting factor. Sections 177 and 198 are concerned with future risk, not with the past.” (Para 34)

As the housing officers and review panel adopted a narrow view of domestic violence in this case, it is agreed that it must be remitted to the authority to be decided again. I accept that these are not easy decisions and will involve officers in some difficult judgments. But these are no more intrinsically difficult than many of the other judgments that they have to make: for example, as to the circumstances in which it is reasonable to continue to occupy the accommodation; as to whether a person has rendered herself intentionally homeless; and as to the suitability of accommodation provided by the local authority. Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? This is not to apply a subjective test (pace the fifth reason given in Danesh). The test is always the view of the objective outsider but applied to the particular facts, circumstances and personalities of the people involved.” (Para 36)

 

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