Worrying Rise in Use of Undertakings.

Photo by Cytonn Photography on Unsplash

For some time now, I have been noticing victims and survivors of domestic abuse are increasingly 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.

I am really concerned at this development, which I see, as setting a dangerous precedent - and 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.    Sometimes an Undertaking can be made on top of a Court Order but, increasingly, it is being offered instead of one – and this is where the problem lies.  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 eventually imprisoned, the perpetrator has the chance to “purge” his or her contempt by making a formal apology backed up by an affidavit.  If he or she is successful in purging the contempt, the perpetrator may secure an immediate or deferred 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.

My advice here is very clear: don’t be fobbed off by an Undertaking which, ultimately, relies on trust rather than police enforcement.  And certainly, don’t agree to a cross undertaking as the perpetrator can then further his abuse by accusing YOU of breaching it when you haven’t.