This is a Guest Post by Jess Mant, a Lecturer in Law at Cardiff University, specialising in family law, access to justice, legal aid and issues of structural inequality.
On 21st January 2019, the long-awaited Domestic Abuse Bill was published, following the government’s “Transforming the Response to Domestic Abuse” consultation, which launched in March 2018. To the relief and credit of several campaign groups and organisations working with domestic abuse, a host of legislative and policy commitments have been promised, including a new statutory definition of domestic abuse, new court orders, and important changes to court procedure aimed at protecting victims during the legal process.
For a detailed outline of the provisions and changes proposed in the Bill, see Paul Magrath’s recent post here.
A major achievement of the Bill is the extent to which it commits to broadening the definition of domestic abuse and investing in training and education for those in a position to provide support to victims.
For instance, the new statutory definition incorporates a greater understanding of economic abuse, which is more nuanced than financial abuse. As Georgia Powell explains in “Economic Abuse Finally In ‘Plain Sight’ Thanks to Draft Domestic Abuse Bill”, economic abuse can keep victims within abusive relationships for longer, as partners are able to control not just finances, but also their access to transportation, housing and credit. Additionally, the definition makes major steps in recognising the impact that abuse can have on children who are exposed to it. Although it is not included in the statutory definition, the government has also committed to further investigating the role that technology and social media play in the perpetration of domestic abuse, through their forthcoming ‘Online Harms’ white paper. It is certainly encouraging that the government has committed to further research into these important dimensions of domestic abuse.
In terms of training, the government has committed to investing in toolkits and on-the-job training for those working in the NHS, the police, the courts and social work, in order to increase awareness of non-violent forms of abuse and encourage authorities to respond and take action when they are faced with victims in need of support. Importantly, this investment includes training on specific experiences of abuse, such as that contended with by LGBTIQA+ or BAME victims, or those who are disabled or elderly.
One of the longer-term elements of this package of commitments, is the promise to invest in a Relationship and Sex Education curriculum to be delivered to children in schools as early as September 2019. Early education is perhaps one of the largest steps toward combating the cultural myths and stereotypes surrounding domestic abuse, ensuring that young adults understand the signs of unhealthy relationships, and generally work towards a society which is less tolerant of these behaviours.
However, despite this valuable progress, some organisations have already pointed out that this may not go far enough in ensuring that domestic abuse reform is truly victim-centred. For instance, Sarah Green, Co-Director of the End Violence Against Women Coalition, explains that the Bill does not go far enough to protect women with insecure immigration status. Indeed, despite of increased awareness and sensitivity among authorities, those with insecure immigration status will remain unlikely to seek help if they fear the consequences of immigration enforcement.
Similarly, Suzanne Jacob, chief executive of the organisation ‘SafeLives’, has argued that these commitments are not long-term enough, particularly in the health sector, which is a ‘fulcrum’ in domestic abuse cases. In SafeLives’ alternative white paper, they explain that people are more likely to seek initial help about abuse-related problems from a doctor than they are from the police, and so greater spending on resources for A&Es and GPs would save lives and reduce the cost of domestic abuse in the long-run. In this sense, it remains to be seen whether these important commitments will be sustainably effective in ensuring that victims are able to access sufficient and holistic support from public services.
How will the Bill impact upon the family court?
One of the most anticipated aspects of the Bill, was the move to prohibit cross-examination between victims and perpetrators in the family court, in the same way that this is prohibited in the criminal courts. This reform is one that has been most ardently campaigned for since the introduction of legal aid cuts in private family law in 2013. Since these cuts came into force, an unknowable number of victims have been exposed to cross-examination by their perpetrators and been required in turn to question their perpetrators themselves.
In my own research, in which I interviewed several victims who were forced to represent themselves in these proceedings, this experience was wholly traumatising, and often left people with long-lasting mental health issues such as anxiety and Post-Traumatic Stress Disorder. From the court’s perspective, this is not only psychologically damaging for victims involved, but additionally is an inadequate way to obtain evidence from witnesses. To the dismay of victims and campaign groups, the initial pledge to introduce this legislation under the Prison and Courts Bill was lost in the 2017 ‘snap’ election.
As such, all eyes were on this Bill to provide this much needed reform. Consequently, it does appear to make major progress. Currently, it inserts a strict prohibition against cross-examination if there is a criminal conviction or injunction in place against the alleged perpetrator. In this situation, the court would invite the alleged perpetrator to instruct their own representative to undertake the cross-examination for them, and if they cannot or do not do this, the court will do this for them, from central funds.
Additionally, it takes inspiration from the criminal jurisdiction by giving judges the specific power to direct this prohibition in ‘other’ cases. This is vitally important, given the existing problems with the communication between different court jurisdictions, and the fact that many victims may not have already sought help from the justice system or the police, let alone have had those convictions or injunctions completed.
The initial concern with this provision, however, is that for a judge to direct this prohibition in an ‘other’ case, they must be convinced that the cross-examination would give rise to significant distress, or that it would impair the quality of the evidence given. Further, the judge is required to consider whether having a lawyer do the cross-examination ‘would not be contrary to the interests of justice’.
This mirrors the process in the criminal courts, but an important question will be whether distress in the family courts can carry the same weight, or the same level of appreciation from judges who may be otherwise concerned with maintaining their traditional position of neutrality between the two parties. In a recent study for the Ministry of Justice, Natalie Corbett and Amy Summerfield found that the majority of judges felt ill-equipped for managing these situations, and often used the advice of more senior judges as their main source of guidance. In practice, therefore, the use of this may hinge upon the extent to which judges as a profession are informed and sensitive to experiences of domestic abuse, and do not dismiss them as merely emotional. It may be, therefore, that the effectiveness of this provision depends upon these newly established commitments to investing in training and supporting a shift in cultural understandings of domestic abuse within the justice system.
More is required
Although the Bill makes crucial steps towards facilitating this shift, more is required to appreciate the many barriers that victims face within the legal process beyond cross-examination. For instance, the Bill expands and improves the provision of special measures such as video links, screens and separate waiting areas for victims in criminal proceedings. Although some of these measures were introduced to the family court under practice directions introduced in November 2017, the family context is specifically excluded from the provisions contained in the Bill. This appears to be a significant oversight, given the prevalence of abusive relationships in the family court, and the progress made elsewhere in the Bill. Similarly, despite promised updates to statutory and CPS guidance on the ways in which the court process can be used as a means to further perpetuate abuse, it is limited that this has not been employed beyond the criminal context.
An enduring problem, therefore, is that when victims do not have access to advocacy through legal aid, judges and court staff may remain pressured and ill-equipped to provide the support that is much needed in the family law context, if the proposed training is not sufficient or extensive enough. Nevertheless, save for the possibility of another general election, the publication of this Bill marks a significant turning point in the government’s approach to domestic abuse, and a great achievement for those who have campaigned for legislative change.