The government has today published its response to its ‘Transforming the Response to Domestic Abuse’ Consultation, which it launched in March 2018, together with a draft Domestic Abuse Bill.

The consultation was launched by the Home Office and the Bill is being managed by them rather than, say, the Ministry of Justice. But in many ways it is a cross-departmental effort, which deals with a number of different aspects of domestic violence and abuse.

Read the full consultation response and draft bill

Key provisions

Of particular importance to family law proceedings is the long-awaited prohibition in clause 50 against complainants of domestic abuse being cross-examined by the alleged perpetrators in court. Instead, the court will be able to appoint an advocate to do the cross-examination, ie to ask the complainant questions about their allegations in order to challenge their version of events and put questions that the alleged perpetrator would have asked had they been allowed to do so.

In the criminal courts, where cross-examination by a non-represented defendant is already prohibited (under the Youth Justice and Criminal Evidence Act 1999), certain vulnerable witnesses also receive automatic eligibility for “special measures” to protect them against the fear and distress of giving evidence. This is currently only available to complainants on a discretionary basis; the Bill proposes that automatic protection is introduced.

The Bill is important in other respects. It lays down a standard legal definition of domestic abuse. It sets up a new office of Domestic Abuse Commissioner and provides for the funding and staff to enable them and their advisory board to perform their various functions.

There are new powers to deal with domestic abuse through the issuing of domestic abuse protection notices and orders (DAPN and DAPO), breach of which can be dealt with by criminal sanctions.

There are a number of other matters dealt with, including the use of polygraph (lie-detector) tests for offenders, who have committed domestic abuse offences, before being released licence, to help assess the risks; provisions for housing of victims of domestic abuse; and an extension of the extra-territorial jurisdiction of UK courts to deal with offences of violence against women overseas.

The Bill is part of a wider agenda under which the government hopes to tackle the problem of domestic violence and abuse through raising public awareness and by encouraging a concerted effort by police, local government, health and education authorities, and other agencies. Legislation alone is not enough.

What is domestic abuse?

The definition set out in clause 1 of the Bill says:

(2) Behaviour by a person (“A”) towards another person (“B”) is “domestic abuse” if—
(a) A and B are each aged 16 or over and are personally connected, and
(b) the behaviour is abusive.

(3) Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));
(e) psychological, emotional or other abuse.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.

(5) For the purposes of this Act A’s behaviour may be behaviour “towards” B despite the fact that it consists of conduct directed at another person (for example, B’s child).

(6) References in this Act to being abusive towards another person are to be read in accordance with this section. (7) For the meaning of “personally connected”, see section 2.

Clause 2 explains that “personally connected means” the two people are or have been engaged or married or in a civil partnership, or an intimate personal relationship, or there is a child for whom they each have a parental relationship. That means the child is under 18 and they are either a parent or have parental responsibility for that child.

A child under 16 cannot be the victim of abuse within the definition in clause 1 but would instead be a victim of child abuse. However, they remain a child until 18 for the purpose of connecting two adults in a relationship capable of giving rise to domestic abuse, while also being able to be a victim or perpetrator of such abuse themselves, if connected with the other person.

“Controlling or coercive behaviour” (clause 1(3)(c)) is not further defined in this Bill and although there is a cross-reference elsewhere to section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), it probably would be more useful to include something more here.

The Explanatory Notes to the Bill contain detailed commentary on the provisions, as well as an overview — very helpful in explaining it all in non-legalistic terms. The commentary explains “controlling behaviour” as:

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is:

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

Cross-examination in family cases

Part 4 of the Bill is headed ‘Protection for Victims and Witnesses in Court’.

Clause 50 deals with ‘Prohibition of cross-examination in person in family proceedings’, essentially by inserting new provisions into an old statute, the Matrimonial and Family Proceedings Act 1984. So there are new sections numbers to squeeze in, which explains why they are numbered with extra letters of the alphabet as well. These sections are numbered 31Q to 31X (they come after some other new sections, numbered 31A to 31P in the new Part 4A previously inserted into the 1984 Act).

The new sections provide, in essence, that in “family proceedings” (ie in the Family Court or the Family Division)

no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence”

and

“no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.

The first thing to note is that the prohibition (in section 31R) acts against both accuser (complainant) and accused, but only if the person has been charged or convicted or given a caution for the specified offence. That means there has to have been a criminal investigation of their conduct.

However, in section 31S the prohibition is also applied to persons, in the position of the alleged perpetrator, “against whom an on-notice protective injunction is in force” and persons, in the position of the alleged victim or complainant, where “protected by an on-notice protective injunction”.

This means that the prohibition applies whether the parties have been the subject of criminal or civil proceedings in respect of the alleged abuse. But there is a further provision, section 31T, giving the court power to give a direction to prevent cross-examination in other circumstances, where “(i) the quality condition or the significant distress condition is met, and (ii) it would not be contrary to the interests of justice to give the direction.”

The “quality condition” is that the quality of evidence given by the witness would otherwise be diminished; and the “distress condition” means that the cross-examination would otherwise cause significant distress to the witness or party.

Where the prohibition comes into effect, section 31V provides that the court should look for an alternative way of getting the cross-examination done or the evidence obtained, or if not, “invite the party to the proceedings to arrange for a qualified legal representative to act for the party for the purpose of cross-examining the witness”. If that can’t or won’t happen, then

the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party.

Such a representative is not responsible to the party, ie does not act on their instruction, but rather at the court’s request, to ensure the trial is fair.

Where will the money for this come from? Section 31W provides for regulations to be drawn up, to provide for payment out of “central funds”, ie from the public purse. But there is some doubt as to how much will be paid and how many advocates are likely to be willing to do such a job, often at short notice.

Conclusion

This introductory post cannot hope to discuss all the various measures introduced in the new Bill, many of which involve amending other legislation. We may be able to say more in future posts, particularly once the provisions are read and debated in Parliament.

The provisions prohibiting cross-examination in domestic abuse allegations in the family court have already been lost once, when the Prisons and Courts Bill was discontinued as a result of the ‘snap’ election in 2017. It would be a great shame if this urgently needed and long-awaited reform were to be lost yet again as a result of the current disarray over Brexit and the consequent threat to parliamentary time.

Featured image: Government graphic released to accompany the consultation and raise awareness of domestic abuse