Family Law Bulletin 1: Domestic Abuse Reform

The government’s re-introduction of the Domestic Abuse Bill in parliament on 3 March 2020 was widely welcomed by charities, the judiciary and family law professionals.

There are a reported 2.4 million victims of domestic abuse each year (between the ages of 16 and 74). It is hoped that the Bill will see a change in the national response to domestic abuse and create a more effective approach to tackling it.

The Bill proposes to introduce the first ever statutory definition of domestic abuse in England and Wales. It is hoped that this step will contribute to increasing awareness.

On 2 October 2017 a revised Practice Direction (12J to the Family Proceedings Rules 2010) was issued for children proceedings, which referred to “domestic abuse” and not “domestic violence”.

Domestic abuse includes physical abuse, sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, and / or psychological, emotional or other abuse between 2 persons (age 16 plus) who are “personally connected”. This includes relatives, persons who are or were married or in a civil partnership, persons who are in an intimate personal relationship or whom share parental responsibility for a child/children.

One of the most significant and eagerly awaited reforms proposed within the Bill, is the prohibition of cross-examination between alleged victims and their abusers in family proceedings, where the alleged perpetrator of abuse has been cautioned, convicted or charged with a specific offence, or who has been made subject to an “on-notice” protective injunction. Presently, where the alleged abuser acts in person (and is not legally represented within the proceedings) it remains possible for him/her to question the alleged victim, and vice versa. Arguably this current position causes a continuance of the abuse suffered and was described by Mr Justice Hayden (in Re A (A minor) [2017] EWHC 1195 Fam) as a “stain on the reputation of our family justice system”.  

Interestingly the criminal courts have already taken the above step, further to section 36 of the Youth Justice and Criminal Evidence Act 1999, which prevents the accused from cross-examining specific witnesses.

The family courts will also have a general discretion to prohibit cross examination if statutory conditions are met and it is not contrary to the interests of justice to impose such a restriction. In such circumstances, the court will be required to consider alternate means for eliciting the evidence. If there are no alternative means possible and the litigant in person declines to instruct a legal representative, but the court deems it necessary for the cross-examination to occur, the court must meet the associated costs of instructing a legal representative out of central monies.

The Bill also provides for new civil Domestic Abuse Protection Notices and Orders, to be issued following an incident of violence or threatened violence (replacing the 2014 Domestic Violence Protection Orders). These measures will be in addition to the current remedies such as non-molestation and occupation orders in the family courts and restraining orders in the criminal courts. It is envisaged that these will assist in protecting and supporting victims, by placing restrictions on the actions of offenders.

Other key features of the Bill include:

  • Alleged domestic abuse victims will automatically be entitled to special measures, such as the provision of separate entrances to the court, separate waiting rooms and screens.
  • Domestic abuse offenders will be subject to polygraph testing as a condition of their license following their release from custody.
  • The Domestic Violence Disclosure Scheme, also known as “Clare’s Law”, will receive a statutory footing. This scheme requires the police to disclose information to an individual concerning their partner’s abusive past, when considered necessary and proportionate.
  • Local Authorities will have a duty to provide support to victims of domestic abuse, and their children, by providing safe accommodation.
  • A Domestic Abuse Commissioner will be established to champion victims and survivors. The aim of the Commissioner is to also help drive consistency and better performance in response to domestic abuse (across all areas and agencies).

The government has expressed a commitment to making domestic abuse at the top of the agenda and reform in this area is certainly considered long overdue. However, there has been questions raised over whether the Bill goes far enough:

The Bill, whilst providing a statutory definition of domestic abuse, does not specifically reference honour-based crimes, female genital mutilation (“FGM”), forced marriage, exploitation or coercive control related to immigration status.

Further, the definition of persons who are “personally connected” does not include friends, neighbours or those providing unpaid care.

There is some concern that the restrictions in respect of cross-examination may not be consistently applied and that a large proportion of victims will be reliant on seeking prohibition by virtue of the court’s discretion.

The Prison Reform Trust and the Criminal Bar Association have proposed that a statutory defence be created for victims who, as a result of the domestic abuse inflicted upon them, are driven to offend.

Further work is also considered to be required in respect of safeguarding migrant victims, who may face either remaining in an abusive relationship or destitution due to lack of knowledge and potentially deportation.

The Bill is presently at the report stage in the House of Commons. Whilst arguably not comprehensive enough, this landmark Bill is largely heralded as a positive step in the right direction, with the focus firmly on prevention and protection.

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