The Domestic Abuse Act received royal assent on 29 April 2021, but what has it done for victims of domestic abuse, their children, and how such matters are dealt with by the Family Court?
Crucially, the Act has created, for the first time, a statutory definition of ‘domestic abuse’. It states that domestic abuse is any of the following behaviours, irrespective of whether it is a single incident or a course of conduct:
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse
This definition is important as it defines what domestic abuse is and recognises controlling and coercive behaviour as being a form of domestic abuse.
The second key thing the act does, is to identify that a child will be considered a victim of domestic abuse, as opposed to merely a witness, if they see or hear the abuse or experience the effects of the abuse.
These changes are important as they create a blanket definition that is applicable irrespective of whether you are in the family court, criminal court, or some other setting.
So how does the act help victims of domestic abuse who might find themselves embroiled in family court proceedings?
Special measures in courts
The act creates a presumption that victims of domestic abuse may require special measures. These special measures are now available in family courts for victims of abuse where the opponent is the perpetrator of that abuse. These measures can be requested when making your initial application to the court or at any time during the court proceedings.
These measures are necessary because the act recognises that the quality of any evidence a victim might give the court, and/or their participation in the proceedings, may well be diminished.
The special measures a court can offer are wide ranging and include the use of screens in the court room, staggered arrival and departure times, separate waiting areas and separate entrances and exits.
Such measures are available irrespective of whether you are engaged in children proceedings, injunctive proceedings or financial proceedings.
Changes to cross examination rules
Unfortunately, perpetrators of domestic abuse, can use court proceedings as a means of continuing that abuse, especially where there is a history of controlling and coercive behaviour, and this may well involve them making allegations of domestic abuse against the ‘true’ victim.
The act prohibits the cross examination of a victim by a perpetrator of domestic abuse, or vice versa, in certain circumstances; namely:
- the perpetrator has been convicted cautioned or charged
- there is a protective injunction in place
- where the evidence concerns domestic abuse
It also enables the court discretion in other cases, to prohibit one party to proceedings from cross examining the other party where they are representing themselves in court.
In a recent case of mine, which concerned the parties’ children, the alleged perpetrator of the abuse was a litigant in person and representing themselves in Court. I therefore made an application early on for the alleged perpetrator to submit the questions they wished to put to my client, to the Judge in advance of the hearing with a view to the Judge putting those questions to my client, if appropriate.
This is a common solution employed by the courts in these circumstances, even though it can leave the case open to appeal as it may prevent the alleged perpetrator from putting their case across properly.
Outside of family law, the act does a lot for victims of domestic abuse, including making provision for housing victims and their children, creating new criminal protective orders and new criminal offences, including for controlling and coercive behaviour.
Anyone can be affected by domestic abuse, irrespective of their gender, height, build, ethnicity, or any other characteristic. The Act could have gone further in protecting victims of domestic abuse, but it is a welcome and positive step.
As solicitors, we also play our part in supporting victims of domestic abuse. The vulnerability of victims can affect their ability to give clear instructions, discuss the full extent of the abuse, and engage in proceedings. Whilst the Act provides vital improvements to the system, the real benefits will only become evident when they are skilfully applied by family practitioners for the benefit of their clients.