Since March 2018 the government have been consulting for a landmark Domestic Abuse bill. It seeks to legislate to “ fundamentally change the way we, as a country, think about this insidious crime.”
The draft bill was published on 21st January 2019 and focuses on 4 main objectives, i.e. how they can:
- promote awareness – to put domestic abuse at the top of everyone’s agenda, and raise public and professional awareness;
- protect and support – to enhance the safety of victims and the support that they receive;
- transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation;
- improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
Those of us that work in the family courts have daily proof of the devastation that domestic abuse brings. All too often in private law cases the victims of abuse fail to be protected, especially if they are unrepresented. So how does the bill aim to change that and protect the victims of domestic abuse (including children) within the family court arena?
The definition of Domestic Abuse has been expanded and now includes, amongst other things, economic control. This pushes the definition past the more limited ‘financial’ control and allows consideration of more general factors (for example access to transport or housing) that can keep people in abusive relationships. The hope behind the expansion of the definition is that it will help to educate. From now on Judges in the family court will have to acknowledge the broad scope of abuse and take all parts of it seriously. This will hopefully advance the position for victims.
The biggest advance however within the family court arena is the fact that the proposed bill would:
“prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress.”
This would be a huge step forward. Victims of domestic violence travelling through the family court have consistently sited the deep distress caused by the worry of facing their abuser and being questioned by them or having to ask them questions directly themselves. They have also made it clear that their evidence has been diminished and their case has been hampered because of the trauma of facing their abuser in this way. In my experience some victims have decided not proceed with fact findings or final hearings primarily because they could not face the thought of having to deal so directly with their abuser. Historically these factors have led to outcomes for both the child and adult victims that compromised their safety going forward. Some victims have also experienced ongoing trauma as a result of the court process itself including PTSD. The hope is that this clear ban on cross examination in cases where there are convictions or injunctions in place will allow victims the confidence and the space in order to properly and fairly present their case.
There is concern however that it does not go far enough. Often in the family courts we see victims who have not pursued their allegations elsewhere. In this case there would be no convictions or even injunctions in place that would give rise to this automatic prohibition on cross examination. Although the bill also allows Judges the ability to prohibit cross examination in ‘other’ cases where they think it would significantly impact on the quality of the evidence or cause the witness significant distress, whether this happens will be down to the specific tribunal and their understanding of the issues. As practitioners we know that the understanding of Domestic Abuse can vary significantly across the courts and personalities involved with them and there is no guarantee that a particular tribunal will exercise it’s discretion as it should. This could leave many victims still vulnerable to injustice. The bill suggests that there needs to be more training across the justice system and how successfully this is implemented will be critical to how useful this wider discretion will be.
It is also unfortunate that whilst the bill has created a ‘presumption for special measures’ (eg screens/video links etc) for victims of domestic abuse within the criminal court system it has inexplicably failed to offer the same protections in the family courts. This represents a missed opportunity to protect victims and foster an environment where they can give the best quality evidence which is particularly surprising given that abusive relationships are so regular a feature within family law.
Overall it seems the draft Domestic Abuse Bill is travelling in the right direction and its focus on education and training across the whole justice system is a welcome and necessary advance. We all now wait hopefully for enactment; although as the home office estimated the social and economic cost of domestic abuse on the public purse to be in the region of £66 billion between 2016-2017, it is clear that no one, inside or outside of the justice system, can afford for matters to stay as they are.