The approach of the family courts in cases involving domestic violence has increasingly come under fire for not providing sufficient protection for vulnerable litigants. Concerns were raised by campaigning organisations and survivors that the legal definition of domestic abuse did not include some of its more insidious forms and that the powers of the court to prevent abuse were inadequate. The draft Domestic Abuse Bill 2019 seeks to address these problems through an ambitious program of reforms to the criminal and family courts which prioritise victim safety.
This post explains three aspects of the draft bill which will be particularly important for victims of abuse seeking to resolve family law issues: its new definition of domestic abuse, the introduction of Domestic Abuse Protection Notices and Orders, and the long-awaited prohibition on cross-examination of victims by perpetrators of abuse in the family courts. The new orders available are especially significant, as they will allow the court to impose the measures that would be the most effective in each unique circumstance.
For behaviour to constitute “domestic abuse” under the new definition, both parties must be 16 or older and ‘personally connected,’ and the behaviour in question must be ‘abusive’. Parties are personally connected if they are or have been married or in a civil partnership, they have agreed to marry or enter into a civil partnership (regardless of whether the agreement has been terminated), they are or have been intimate partners, there is a child with which the parties each have a parental relationship, or they are relatives.
‘Abuse’ is given very broad scope, including physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, psychological or emotional abuse, and economic abuse. This definition encompasses a wide range of circumstances, which will help to prevent victims falling through the cracks.
The draft bill abolishes Domestic Violence Protection Notices and Orders and replaces them with the new Domestic Abuse Protection Notices and Orders (DAPOs). Whereas the previous orders could only be issued by the police, DAPOs can also be obtained in the family courts upon application by the person seeking protection, persons to be specified in regulations (e.g. representatives of public authorities) or any other persons with the court’s permission. This means that it will not only be the victims of abuse that can apply – applications could potentially also be brought by their friends and family.
DAPOs may “impose any requirements that the court considers necessary” to protect victims from domestic abuse or the risk of domestic abuse, which may include prohibitions on contact, orders regulating the use of premises lived in by both parties, and even requiring abusers to submit to electronic monitoring. The breach of a DAPO is an offence and may lead to a fine or imprisonment, and the orders need not be time-limited.
Applications can be made on a free-standing basis or within existing family law proceedings, and the Court can also make a DAPO without an application. To make the order, the court must be satisfied that one party has been abusive to the other and that the order is necessary and proportionate for the abused party’s protection.
Other protective injunctions such as Non-Molestation Orders and Occupation Orders will remain available, but the wide-ranging powers to impose restrictions and create bespoke protections offered by DAPOs make them a potentially powerful protective measure.
One aspect of the draft bill which has garnered substantial attention is the prohibition on the cross-examination (or questioning in court) of victims by perpetrators in the family courts. This problematic and abusive practice increased following the removal of Legal Aid for private family law matters in 2012, as parties accused of domestic violence found themselves acting in person out of necessity.
The draft bill seeks to rectify this in two steps. Firstly, it prohibits persons convicted of, cautioned for, or charged with a specified offence, or subject to a protective injunction, from cross-examining the victim in person. The court can also prohibit cross-examination where the quality of witness evidence would be diminished or if significant distress would be caused if an individual cross-examined in person. Secondly, having imposed such a prohibition and having considered any suitable alternatives, the court can invite the perpetrator to arrange for a qualified legal representative to conduct cross-examination on their behalf. If this is not possible, then the court can itself appoint a representative if it is in the interests of justice to do so.
Questions remain about the practicalities of the scheme. It is not immediately clear how legal representatives will be funded and having a representative for such a small portion of wider proceedings may be of limited benefit to accused parties. However, this move to reduce the trauma of victims and address the continuation of abuse in the courts is certainly to be commended as a significant step forward in transforming institutional responses to domestic abuse.
Optimistically yet cautiously welcomed, a wider concern remains potential drift where the Government is currently preoccupied with the country’s departure from the European Union. It will be imperative that the measures being introduced are backed by proper funding to give them the best possible chance of success.
Written by: Catherine Campbell, Paralegal
