Upon first glance the Bill appears to be exactly what was called for. Its proposals include a focus on children as victims, bringing economic and financial abuse within a statutory definition, specially trained magistrates available 24-hours a day
to hear cases, mechanisms to address perpetrator behaviour and a review of the manner in which witnesses are handled in the family courts. A government-funded commissioner would be responsible for the prevention of domestic abuse and oversee the
support available for those affected. So why has criticism been increasing?
Defragmentation and definition
One of the problems the Bill intends to solve is the current fragmented approach to dealing with matters of domestic abuse. A key aim therefore is to unify disjointed legislation and establish a legal framework specifically designed to deal with issues
surrounding domestic abuse. By way of example, in the criminal courts incidents of serious physical violence are dealt with in the Offences Against the Person Act 1861, but are not specific to domestic abuse. Less serious assaults come under the
Criminal Justice Act 1988 and also, are not specific to domestic abuse. Remedies in the family courts are found in Part IV of the Family Law Act 1996. Another major difficulty has been that the criminal and family courts vary in their procedural
rules and differ in their means of implementation and enforcement.
The application of ‘special measures’ (allowing alternative means by which a victim may give evidence such as behind a screen or via video link) which was introduced for victims of domestic abuse before and during criminal trials can be
sourced from the Youth Justice and Criminal Evidence Act, 1999. The standard to which witness handling is managed in the family courts needs to fall into line with the criminal courts. The Bill intends on resolving this by providing the same measure
for victims in both courts as to the manner in which they can provide their evidence.
Similarly, sentencing guidelines were provided for domestic abuse-related offences in 2018 to encompass their aggravating features when considering penalties. The guidelines are set to be revised in order to reflect the damage caused to children by
domestic abuse and to ensure that this is considered and reflected in sentences.
The Bill would provide, for the first time, a statutory definition of domestic abuse, which would also include non-physical such as emotional abuse. Non-physical abuse already includes coercive and controlling behaviour which has been a stand-alone
criminal offence since 2015 as a result of the Serious Crime Act.
The most extensive definition can be found in Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. This is by no means an easily attainable reference; PD 12J is very much embedded in Children Act proceedings in the
family courts. The Legal Aid Sentencing and Punishment of Offenders Act 2012’s definition of domestic abuse is found in Sch 1, para 12(9).
Certainly, much is left to be desired as to both ensuring that a definition of domestic abuse is clearly signposted for both criminal and family matters and easily identifiable for support service providers and the public itself.
Some of the Bill’s criticism centres on procedural flaws such as the lack of consideration for the criminalisation of financial and economic abuse and whether there will be legislative review to consider this. The Bill remains silent on the
issue. This leaves those susceptible to abuse in this manner, including older people and those with disabilities whose partner is their carer, particularly vulnerable. A lack of criminalisation of economic abuse also has a profound impact on migrant
women by restricting the choices they are able to make by having both restricted access to their own finances as well as to public resources. This will inevitably prevent them from fleeing a volatile situation, accessing transport or funding alternative
Lack of protection for migrant women has been further highlighted by the UK’s failure to ratify the Istanbul Convention. The Istanbul Convention serves to tackle violence against women and girls and is far-reaching in its consideration of situations
including domestic violence, female genital mutilation and honour-based crimes and forced marriage. The convention was signed by former Prime Minister, David Cameron in 2011 but as the UK is yet to ratify the convention, it cannot be bound by
it. The Bill is considered a final step towards ratifying the convention. Meanwhile, there have been calls by campaigners and activists to the government to extend the Bill to Northern Ireland, due to the Bill’s provisions being limited
to England and Wales.
Those in receipt of benefits are also likely to be left vulnerable. By way of example, the design of the universal credit system allows for benefits to be paid jointly to one household rather than per individual. Although requests can be made for
universal credit to be divided, those in abusive relationships may fear the consequences of doing so. But this is nothing new as campaigners have been warning of this as a possibility since the Welfare Reform Bill was introduced in 2011.
One of the main areas of criticism is around the Bill’s timing. Some women’s charities accuse the Bill of being a knee-jerk reaction to escalating figures of domestic abuse which made their way into the public consciousness throughout
much of 2017/2018 through mainstream media.
Domestic abuse had been labelled an ‘epidemic’, with the social and economic cost in the region of £66 billion in the year ending March 2017 in England and Wales, according to a Home Office report. Public outcry demanded a response
to the damning statistics that on average, two women are killed every week by a man who was known to them, including ex-partners, current partners or a family member.
More questions than answers?
Although the Bill claims to consider the varied needs of black, Asian and minority ethnic (BAME) victims, domestic abuse cannot be pigeon-holed into one category of contentious issue. Rather it is a complex, multi-faceted concern. This is reflected
by the wide range of people of varying cultural and economic backgrounds and sexual orientation reporting incidents. Questions have also been raised as to the lack of housing and welfare support to migrant women who are dependent on the perpetrator
for their stay in the UK.
"Some women’s charities accuse the Bill of being a knee-jerk reaction to escalating figures of domestic abuse which made their way into the public consciousness throughout much of 2017/2018 through mainstream media."
But the Bill appears to have raised more questions than provide answers. Domestic abuse activists ask what the proposals will be, if any, for progressing prosecutions in instances where the victim withdraws their support. Contrary to this, the issue
of malicious allegations against individuals remains to be addressed. How these issues and their repercussions will be dealt with remains unclear.
Treatment of witnesses
Protection for witnesses in criminal matters involving domestic abuse has been in place as a result of the Youth Justice and Criminal Evidence Act 1999 for almost 20 years, yet in the family courts this remains unresolved. It is anticipated that the
proposals will reflect the provisions in place in the criminal courts by incorporating them into family proceedings. In order to avoid individuals from being cross-examined by those who are facing allegations of domestic abuse, a representative
will be appointed to them solely for this purpose. Similar to the criminal courts, funding for lawyers dealing with this task in the family courts has been canvassed but the role of the representative and their remit remains unclear.
Culling public funds in the family courts to matters whereby only complainants in domestic abuse matters are able to obtain public funding, and even then under limited circumstances, has proved devastating. This means that perpetrators or those who
have been accused of domestic abuse are at liberty to cross-examine their ex-partner or family member during family proceedings. This has also sparked a debate over the need to cite domestic abuse as an issue within family proceedings in order
to justify and support applications for legal aid. Also by only offering legal funding for accusers rather than the accused has prompted dialogue on human rights issues and brought into question potential violations of the European Convention
on Human Rights, Article 6.3(c) and the right to defence.
Further proposals include the strengthening of the powers of protection orders by way of increasing access to information. Domestic Abuse Protection Notices and Domestic Abuse Protection Orders (DAPOs) would further safeguard victims and place restrictions
on the actions of perpetrators. DAPOs are likely to replace the current Domestic Violence Protection Orders and go beyond their current scope. Applications for such could be made in both the criminal and family courts. In the family courts, they
may be made by someone other than the victims themselves and allows for local authorities and support workers to apply. Scope has also been allowed for those who are not initially entitled eg family and friends of the victim, with leave of the
court. It would allow for the court to impose both restrictions and activity requirements on the perpetrator.
The Bill also contains a provision for those considered to be ‘high risk domestic abuse offenders’ to be subject to polygraph testing as a condition of their release on licence. Although this technique is already used in considering the
release of convicted sex offenders in accordance with the Offender Management Act, 2007, it has not been without substantial controversy. Dubbed ‘junk’ or ‘pseudo’ science, lie detector tests aren’t admissible as
evidence in criminal proceedings on the basis of their lack of reliability so to propose this appears somewhat paradoxical.
The bigger picture
One of the overwhelming reactions has been that the Bill doesn’t address any issues surrounding funding cuts to frontline services such as refuges, the erosion of public funding in the family courts and the dire lack of emergency housing for
individuals fleeing domestic abuse. The lack of refuge places and emergency housing indicates a disconnect between governmental departments, namely the Home Office and the Ministry of Housing, Communities and Local Government.
Aside from women who end up in refuges, children who are also victims of abuse are still not offered any form of government-funded specialist support. It has also been pointed out that the onus remains on individuals living with domestic abuse to
ensure that they and their children are safe rather than on the perpetrator to stop. Amongst non-legislative measures, Justice Secretary, David Gauke has pledged £8 million of Home Office funding to support children affected by domestic
abuse, a new crisis support system for those with no recourse to public funds and additional funding for building services for disabled, elderly and LGBT victims.
Economic inequality, lack of support services, funding cuts to public and emergency services will inevitably affect the manner in which reports are made by victims as well as how their complaints are responded to. Creating solid, safe reporting pathways
with the support network in place necessary remains undefined.
Men’s groups also say that not enough was done in the Bill to consider the escalating figures of men as victims of domestic abuse. With reports made by male victims reaching 500,000 last year, support groups acting on their behalf claim that
men are an afterthought when considering the issue surrounding domestic abuse. This does appear to have been responded to in a Home Office position statement published on 6 March 2019 outlining its proposals for male victims of crime setting out
12 commitments to assist victims and survivors in receiving support and seek help. £1 million worth of funding has been pledged to organisations assisting men who are the victims of gender-based violence, including £500,000 to specialist
lesbian, gay, bisexual, and transgender domestic abuse support service providers.
This much is clear
Whilst the Bill appears to have raised more questions than provide answers, what is clear is that a well-structured and unified system is essential in a legitimate attempt to prevent domestic abuse in the UK from repeating the recent figures in the
coming years. The Bill is yet to be brought before Parliament for debate.
Christina Warner is a barrister at 1 MCB Chambers.
Experiences of special measures in the family courts
The application and facilities for special measures in the family courts is widely acknowledged as ad hoc and under par compared with the criminal courts. Research in 2018 for the charity Women’s Aid* found that a sample of 72 women survivors
of domestic abuse who had gone through the family court system had very different experiences:
- No special measures: 61% (35 women)
- Separate waiting room: 33% (19 women)
- Separate entry and exit times: 7% (4 women)
- Screen: 7% (4 women)
- Video link: 3% (2 women)
- Other types: 14% (8 women)
Model waiting rooms for victims and witnesses were introduced to five criminal courts in 2017 but provision for special measures can be ineffective elsewhere. As one focus group participant told the Women’s Aid research team: ‘I had to
request for myself a separate waiting room area. And every time I put in that request, […] when I’d arrive I’d find that the arrangement hadn’t been passed on to the people on the front desk, and he’d always be there
– standing and intimidating, and one of the waiting rooms in the court […] was so small that there was nowhere to sit other than feet away.’
One Women’s Aid interviewee said: ‘I know that if I asked for a screen or separate entrances, it would go against me. And that means it would go against the outcome I’m trying to get for my child, so I wouldn’t do it. You just
have to deal with the trauma that it brings, you just have to deal with it all.’
‘My biggest fear was not so much being inside the courtroom itself as being outside the court,’ a vulnerable witness told Counsel. ‘I wasn’t sure if I wanted screens but separate waiting areas would have been a big help. There
was nobody to meet me and so I walked into the public area. When I was taken to the door of the court, I came face to face with the respondent who was standing waiting to go in. I had been assured that this would not happen. We walked into the
hearing together and I went behind the screen. After the hearing was over the respondent got up and walked out, again in full view with both of us perfectly able to see each other. The entire episode was discourteous to both parties who had arrived
at the hearing with certain expectations of what would happen with respect to the special measures which were not met.’
Another described to Counsel her experience of applying for special measures: ‘An application was made on my behalf. The application was refused. No reasons were given for the refusal which stated that: “the Court is presently not
satisfied that the mother is vulnerable… or that their participation in proceedings is likely to be affected.” The application was renewed and this time was agreed. The circumstances had not changed and so I do not know why there
was this turnaround. I was told that the most likely reason was that the court had lost my papers. All in all, when I arrived at court on the morning the little confidence I had was destroyed.’
*Birchall, J. and Choudhry, S. (2018) ‘What about my right not to be abused?’ Domestic abuse, human rights and the family courts, Bristol: Women’s Aid, 72 women survivors of domestic abuse.
Women’s advice line
The National Domestic Violence Helpline is run in partnership between Refuge (www.refuge.org.uk) and Women’s Aid (www.womensaid.org.uk).
Tel: 0808 200 0247 (24 hours)
Email: firstname.lastname@example.org (response within 3 working days)
Men’s advice line
The Men’s Advice Line is a confidential helpline for all men experiencing domestic violence by a current or ex-partner.
Tel: 0808 801 0327 (Monday to Friday, 10am to 1pm and 2pm to 5pm)
Find a full list of domestic violence and abuse resources here.