In July 2018 we published a Legal Update which addressed the lack of support and protection of domestic abuse victims in the Family Courts. Our concern in particular was that victims in Family courts had less protection in legal proceedings than victims in criminal courts. As detailed in our previous Legal Update, the protection of domestic abuse victims was to be discussed by Parliament in July 2018. Following that consultation, on the 21st January 2019 the Government published a landmark draft Domestic Abuse Bill. The bill will help to tackle not just the crimes associated with domestic abuse but also the wider issues surrounding domestic abuse including the support of victims.

For the first time the legislation will introduce a statutory government definition of domestic abuse. The definition defines the relationship between the abuser and the victim as well as defining what constitutes abusive behaviour. The bill lists five types of behaviour which constitute domestic abuse. These are physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse and psychological, emotional or other abuse. The Government has stated that the purpose of defining the abuse is to enable everyone to understand what constitutes abuse. The hope is that it will assist victims themselves and will encourage more victims to come forward, report the abuse and enable them to access the support they need.

The bill will also establish a Domestic Abuse Commissioner. The Commissioner is to raise awareness and encourage good practice in the prevention of domestic abuse, the detection, investigation and prosecution of domestic abuse offences and the identification of the perpetrators of the abuse, the victims and the children affected by the abuse.

The legislation will also introduce new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders. These Notices and Orders will provide victims of abuse with further protection and will place clear restrictions on the actions of the perpetrators of abuse.

One significant change set out in the bill is that the cross examination of victims by their abusers in the Family courts has been prohibited in certain circumstances. Clause 50 of the bill prohibits the cross examination in person in family proceedings when there has been criminal convictions, cautions or there is a current criminal investigation underway. The bill states that if the perpetrator of the abuse has been convicted of, given a caution for or charged with a domestic abuse offence then they may not cross examine in person a witness who is the victim or alleged victim of that offence.

Clause 50 of the bill further prohibits the cross examination in person in family proceedings when there is a civil injunction in place. The bill states that that if the perpetrator of the abuse has a protective injunction made against them which remains in force, they are prohibited from cross examining the witness who is protected by the injunction.

Whilst the bill affords the victims of abuse with this protection, the bill further states that the victim of the abuse is prohibited from cross examining in person the perpetrator of the abuse. Whilst some may see this as affording the perpetrator a level of protection, in reality, it does protect the victim from further abuse from the perpetrators responses to any cross examination. The bill does however recognise that in the interest of justice it is, at times, necessary for cross examination to take place. The bill therefore provides the Court with the ability to appoint a legal representative to carry out any necessary cross examination on behalf of the prohibited party thus enabling the case to progress whilst ensuring the victim is sufficiently protected.

The banning of cross examination is a much needed step forward in the protection of victims of abuse in the Family Courts. The Justice Secretary, David Gauke commented on this aspect as follows:

‘Domestic abuse destroys lives and warrants some of the strongest measures at our disposal to deter offenders and protect victims.

That is why we are barring abusers from cross examining their victims in the Family courts – a practice which can cause immense distress and amount to a continuation of abuse – and giving courts greater powers, including new protection orders, to tackle this hideous crime’

The bill has been welcomed by many domestic abuse charities and specialist support services including Katie Ghose, the Chief Executive of Women’s Aid who was one of several heads of domestic abuse services who wrote a joint letter to the Lord Chancellor and Secretary of State in 2018 calling for the Government to take urgent action in banning the cross examination of victims by their abusers in Family courts.

Katie Ghose stated:

‘The Domestic Abuse Bill has the potential to create a step change in the national response and this must be backed up with sustainable funding for our life-saving network of specialist support services to make a real difference to survivors’ lives’

It is very much hoped that the changes set out in the draft Domestic Abuse Bill will ensure the victims of domestic abuse are provided with the support and protection they deserve.

Our family law team regularly deal with domestic abuse cases therefore if you require advice or assistance please contact our Family Department.