Lockdown on violence? Debating the Domestic Abuse Bill during a pandemic

The Domestic Abuse Bill was debated at second reading on Tuesday 28 April, and has now been sent to a Public Bill Committee, which will report by 25 June 2020. The timing is poignant: in the midst of the coronavirus pandemic, highlighting the significant delay that there has been in implementing real change in this area.

The COVID-19 lockdown has led to a unique and terrifying set of circumstances for those isolated with an abuser: asking people to stay at home, when home is not a safe place, and isolating victims from the support of others when that is precisely what perpetrators of domestic abuse often seek to do.

The Observer reported on 26 April 2020 that:

“The lockdown has aided and abetted [abusers] in their mission to terrorise. Around 6% of adults report having experienced domestic abuse in the last year, the overwhelming majority of them women; two women a week are killed by a current or former partner. Since social distancing restrictions came into force last month, there are alarming signs that domestic abuse has surged; the National Domestic Abuse helpline has seen a 25% increase in calls, and the Metropolitan police have reported a 24% increase in charges and cautions for domestic abuse. The pandemic also makes it more difficult for women to access help: not just because they may be constantly monitored at home, but because three quarters of domestic abuse services have reported having to reduce their services, because of staff self-isolating and social distancing requirements.”

Even as lockdown gradually loosens, this will do little to alter the landscape of isolation, and the immense difficulties that exist in accessing help at this unprecedented time. Victims who are currently trapped with their abusers may be unable to report the abuse they have experienced until lockdown ends. The number of people needing support is increasing. The Home Affairs Committee published a report on 27 April 2020 on the pandemic’s impact on victims of domestic abuse,[1] making a series of recommendations about improving support, and noting that “without strong action to tackle domestic abuse and support victims during the Covid-19 pandemic, society will be dealing with the devastating consequences for a generation”. The pandemic has done much to highlight the vulnerabilities in the system, and areas where protection is simply insufficient, for example funding for support services. Practical changes are being made in a number of areas, for example the Mayor of London, Sadiq Khan, has announced a further £1.5million emergency response fund to provide victims of domestic abuse with safe accommodation and support if they need to flee their homes during the coronavirus pandemic.

In addition, family courts are having to work particularly hard to get the approach to domestic abuse cases right during the pandemic.  The recent Nuffield Family Justice Observatory report on remote hearings[1] highlighted issues in this area: concerns included the lack of specific protocols and the management of remote hearings. Examples were given of victims waiting on the phone line for the hearing to begin with the perpetrator being the only other person on the line, and of victims feeling distressed by hearings effectively taking place in their homes. On the positive side, some victims actually found remote hearings considerably better than attending court, and many respondents noted that the process for obtaining non-molestation orders was straightforward and cases were being dealt with swiftly, although there was some concern about the delays in listing full hearings.

 

[1] Nuffield Family Justice Observatory, “Remote hearings in the family justice system: a rapid consultation”.
[2] Home Office preparedness for Covid-19 (Coronavirus): domestic abuse and risks of harm within the home

 

The Domestic Abuse Bill

In this context, it is particularly important that the law does what it can to shield and protect, and that the opportunity that the Domestic Abuse Bill presents is properly utilised.

The Domestic Abuse Bill was first published in January 2019, and reintroduced in amended form on 3 March 2020.

The Domestic Abuse Bill is divided into seven parts:

1. 1. Part 1 creates a new statutory definition of domestic abuse, emphasising that domestic abuse is not just physical violence, but can also be emotional, coercive or controlling, and economic abuse;
      a. (clearly family lawyers already have a broad definition of abuse, in accordance with Practice Direction 12J, and the wording of the Bill effectively mirrors this)
      
   2. Part 2 establishes a Domestic Abuse Commissioner (the post has already been created, and Nicole Jacobs is the present Commissioner);
   3. Part 3 creates a new regime of Domestic Abuse Protection Notices and Domestic Abuse Protection Orders;
   4. Part 4 places a statutory duty on tier 1 local authorities to provide support to victims of domestic abuse and their children within refuges and other safe accommodation;
   5. Part 5 establishes a prohibition on litigants in person in family proceedings cross-examining each other in certain circumstances and in such cases the family court has the power to appoint a legal representative to conduct the cross-examination on the person’s behalf. This part also creates a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal courts;
   6. Part 6 extends the jurisdiction of the UK courts so that, where appropriate, UK nationals and residents who commit certain violent and sexual offences outside the UK may be brought to trial in the UK; and,
   7. Part 7 enables domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody. This part also places the guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) on a statutory footing, and provides that local authorities are required to grant a new secure tenancy to a social tenant when that tenancy is being granted following domestic abuse (and the person previously had/has a secure lifetime or assured tenancy).

Cross-examination in person in family proceedings

Clause 59 of the Bill inserts a new Part 4B into the Matrimonial and Family Proceedings Act 1984.

The new provisions propose an automatic ban on cross-examination in person where:

1. 1. one party has been convicted of, given a caution for, or charged with certain offences against the witness (or vice versa). Regulations will specify which offences will trigger the automatic prohibition, including offences related to domestic abuse or violence, child abuse and sexual abuse;
   2. an on-notice protective injunction is in place between the party and witness; or
   3. there is other evidence of domestic abuse (to be specified in regulations, but essentially such as that relevant for the purposes of accessing civil legal aid in England and Wales) (iii. was added into the March draft).

The court also has discretion to prohibit cross-examination where is considers that the quality of evidence would be improved (the “quality condition”), or significant distress alleviated (the “significant distress condition”).

Once over this hurdle, the Bill provisions require the court to first consider if there are any satisfactory alternative means for the witness to be cross-examined or to obtain the evidence that they might have given in cross-examination. If there are not, the court must invite the party to appoint a legal representative to cross-examine the witness. If the party does not do so, the court can appoint a legal representative to carry out the cross-examination, paid for from central funds.

Crucially, the court-appointed legal representative will not be acting for the party as their lawyer and will only be responsible for cross-examining the relevant witness.

Change has plainly been a long time coming, and whilst courts have found workarounds (questions being written down and approved, and/or asked by the judge/magistrate), there have been clear question marks and concerns about this approach, not least whether the court can continue to give the appearance of total impartiality in these circumstances. The possibility of a funded advocate being made available is a fundamental, and welcome, change.

However, much remains to be seen as to how this would work in practice. It will be essential that the scheme is sufficiently funded, and in particular that enough time is permitted financially for proper preparation by the advocate. It is notable that the Bill provides for an advocate to step in for the specific cross-examination alone. This will not assist the wider running of proceedings, where litigants in person continue to interact indirectly throughout any hearings. Presumably the regime might also lead to circumstances where the advocate is publicly funded to attend (and wait around) for most of a day in court, and yet their role is limited.

Furthermore, the advocate is chosen by the court, and Clause 31W(7) provides that “A qualified legal representative appointed by the court under subsection (6) is not responsible to the party”. This is likely to create very real difficulties as to how the case is actually run – the advocate must “represent the interests of the party” (clause 31W (5)), without “being responsible” to them. How will this actually work in practice when properly establishing and running the party’s case? At the very least, this is likely to create significant ethical difficulties for the advocate.

It seems that the “cross-examination advocate” solves an aspect of the problem created by LASPO legal aid cuts, rather than the much wider issues running through cases involving domestic abuse and litigants in person, and the dilemma in ensuring that all parties have a fair trial and are able to properly put their case.

Domestic Abuse Protection Orders

Clauses 19 to 52 of the draft Domestic Abuse Bill set out a proposed new civil order to replace the Domestic Violence Protection Order which was rolled out nationally in 2014. The new order, and the notice that would precede the granting of an order (where the police apply), would be known respectively as a Domestic Abuse Protection Order (DAPO) and Domestic Abuse Protection Notice (DAPN).

The new DAPO conveys broad powers: the court can impose restrictions and active requirements on the perpetrator (including electronic tagging) and there are no limitations on the duration. Existing orders (non-molestation orders, occupation orders, protection against harassment orders, restraining orders) differ in terms of who can apply for them, the courts in which the orders may be made, the conditions that may be attached to an order and the consequences of breach. The DAPO is intended to be the future “go to” injunctive remedy, creating a unified regime.

Existing Domestic Violence Protection Orders are granted on application by the police – they have been very patchily used by police forces. Applications for the proposed DAPO can be made by a wide variety of people: the victim, a person specified in regulations, and any other person with leave of the court. It is anticipated that regulations will cover bodies such as local authorities, probation service providers, independent domestic abuse advisors and specialist non-statutory support services (for example, refuge workers). Presumably even other family members or friends could apply (with leave). Applications would generally need to be made to the family court. Family courts would also be able to make DAPOs of their own volition: against a person (P) in any family proceedings to which both P and the person for whose protection the order would be made are parties.

The court can make an order if two conditions are met: Condition A is that the court is satisfied on the balance of probabilities that P has been abusive towards a person aged 16 or over to whom P is personally connected, and Condition B is that the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

There is provision for orders to be made without notice. The victim does not need to consent to the making of the order.

Under the proposed regime, the court may impose whatever protective requirements it considers necessary. DAPOs cover the non-molestation order and occupation order territory as to matters such as prohibition of contact, exclusion zones and occupation of a property. They can also include far more wide-reaching positive requirements: such as orders to attend perpetrator programmes or alcohol/substance misuse programmes. A DAPO that imposes a requirement to do something on a person must specify the person who is to be responsible for supervising compliance with that requirement e.g. the relevant provider of substance misuse recovery services.

The Bill provides that a DAPO may require P to undergo electronic monitoring for up to 12 months (this requirement may not be imposed in P’s absence). This could include tagging, or electronic monitoring of e.g. alcohol consumption.

There are also “notification requirements” attached to a DAPO – P must keep in touch with the supervisory person in accordance with instructions given and also notify them of any change of address. The court has the power to impose additional notification requirements.

The current DVPOs do not have a criminal sanction if they are breached whereas the new DAPO regime contained in the Bill, would make breach of an order a criminal offence punishable by up to 12 months’ imprisonment on summary conviction and up to 5 years’ imprisonment on conviction on indictment. Significantly, a breach could alternatively be punished as contempt of court. Failure to comply with notification requirements can also be a criminal offence.

Positively, the new scheme is intended to unify the approach between different jurisdictions (family, civil, criminal), and to simplify existing protective orders into one scheme. Other protective orders, such as non-molestation orders and restraining orders, will remain in place so that they can continue to be used in cases which are not domestic abuse-related, such as cases of stalking or harassment where the perpetrator is not a current or former intimate partner or a family member. It is intended that statutory guidance on the orders will cover how DAPOs fit within the existing protective order landscape and scenarios in which they should be considered.

However, whilst the government envisages extending legal aid to cover applicants for DAPOs, this still is not anticipated to apply to respondents. Given the extensive and draconian provisions as set out above, this is problematic. Particularly given that respondents will be less inclined to just accept the imposition of DAPOs if positive requirements are included, as has routinely become the case with non-molestation orders (with many not turning up to return dates, and the old adage about just being asked to do something that you were not going to do anyway). Practitioners are well aware of the issues created by delays waiting for final contested fact-finding hearings to be listed in injunction matters – again this will be even less acceptable if someone is subject to a DAPO in the meantime. Particularly if the regime leads to more applications to the family court than at present, and more delay. It is also difficult to see how someone can be meaningfully compelled to e.g. attend a perpetrator programme, when many require that someone is willing to make admissions as to their prior conduct in order to enrol.

Conclusion

The Domestic Abuse Bill promises ambitious change. It makes certain high-profile revisions to the existing legal framework, not least the outright ban on cross-examination in certain circumstances in family proceedings. There is clear merit in having a unified DAPO system across civil, family and criminal jurisdictions. However, it is difficult to see how certain elements of the Bill will work in practice, including how the DAPO scheme would in fact fit in alongside existing injunctive measures, and how the orders will be utilised.  In particular, further clarification and guidance will be essential on the remit of appropriate positive requirements under a DAPO, and availability and funding for these schemes.

There are gaps in what the Bill covers, in particular it does not address the particular vulnerabilities where a victim’s immigration status is insecure, nor does it acknowledge the need for children affected by domestic abuse to have access to specialist support services. These issues continue to be debated.

Other changes?

In addition, the Ministry of Justice’s “Harm in Private Law” panel is imminently due to report on the effectiveness of family courts in domestic abuse cases,[1] and the final report of the Private Law Working Group will follow (the second report was published on 2 April 2020). The Ministry of Justice panel report will also hopefully be available during the Domestic Abuse Bill’s Committee stage.

The current government also plan to pilot integrated family and crime domestic abuse courts. £5 million was set aside in the March Budget to allow that pilot to progress.

 

[3] The Panel was established in May 2019. The remit of the panel’s enquiry is: “How effectively do the family courts respond to allegations of domestic abuse and other risk of harm to children and parent victims in private law children proceedings, having regard to both the process and outcomes for the parties and the children.”

 

  Lucia Crimp – click here  to view profile