In 2019 the ONS recorded an approximate 2.4 million victims of domestic abuse aged 16 to 74. The global pandemic brought into greater focus its devastating effects, with restrictions exacerbating the plight of some victims.
Within the family justice system, the Court of Appeal has recently taken the opportunity to give guidance about domestic abuse in private law children matters in Re H-N and Others (children) (domestic abuse: finding of fact hearings). Hailed at the outset as a “once-in-a-generation opportunity”, the Domestic Abuse Bill was to be the conduit for overdue reform.
Progress was delayed by Brexit, the September 2019 unlawful prorogation of Parliament and the December 2019 general election. After meandering through Parliament, with episodes of deadlock on certain issues as between the Houses, the Bill received Royal Assent on 29 April, becoming the Domestic Abuse Act 2021. The legislation is transformative in many ways albeit there are concerns about the existence of lacunae in the Act, leaving vulnerable groups exposed. Its practical implementation will be the ultimate benchmark of success.
Achievements of the Act
The Domestic Abuse Act 2021 is lengthy, running to some 91 sections with 3 schedules. Some of the key achievements of the statute are summarised non-exhaustively as follows:
- Rosie Duffield MP powerfully explained that “soap opera scenes tend to focus only on one or two aspects of a much bigger and more complex picture. Domestic violence has many faces, and the faces of those who survive it are varied, too… Abuse is not just about noticeable physical signs. Sometimes there are no bruises”. The new statutory definition of domestic abuse at Part 1 of the Act recognises its varying and nuanced forms, expressly citing controlling or coercive behaviour and economic abuse.
- The role and functions of the Domestic Abuse Commissioner are formalised (the announcement of the first appointment to this role having been in September 2019). The Commissioner is to encourage the prevention of domestic abuse by various means.
- The Act introduces by Part 3 new powers for dealing with domestic abuse. These include a civil Domestic Abuse Protection Notice (DAPN), which may be issued to an adult by a senior police officer to provide immediate protection following an abusive incident. The civil Domestic Abuse Protection Order (DAPO) is designed to facilitate flexible, longer-term protection for victims. DAPOs may be made in response to an application or in the context of existing family, criminal or civil proceedings (including potentially on a without notice basis). Breach of DAPNs and DAPOs constitutes a criminal offence.
- Obligations are placed on local authorities to provide support to domestic abuse victims, for example through provision of accommodation by Parts 4 and 7 of the Act. Eligible homeless victims of domestic abuse will have ‘priority need’ for homelessness assistance and provision is made for the granting of secure tenancies in cases of domestic abuse. Domestic abuse local partnership boards are to be set up to facilitate some diversity of representation to monitor the area’s strategy.
- From the perspective of family law practitioners, one of the most significant reforms is the prohibition of direct cross-examination of victims of abuse by certain alleged or proved perpetrators and vice versa enshrined within section 65 of the new Act. Where a perpetrator of domestic abuse self-represents in the family court, direct interaction through questioning can be traumatic for the victim and constitute a continuance of abuse. In PS v BP Mr Justice Hayden called for Parliamentary intervention, having set out some proposed guidelines as a “forensic life belt until a rescue craft arrives”. The approach of the family jurisdiction had been incongruous with the practice in the criminal courts (section 36 of the Youth Justice and Criminal Evidence Act 1999 prohibits the accused from cross-examining particular witnesses). Under the new law, where alternative approaches are not suitable, a qualified legal representative may be appointed by the court to conduct the cross-examination, to be paid from central funds. Section 66 of the new Act similarly addresses the issue in civil proceedings.
- Criminal offences are formalised by Part 6 of the Act, namely the statutory offences of controlling and coercive behaviour in an intimate or family relationship (to include abuse where perpetrators and victims no longer cohabit), non-fatal strangulation, the removal of the defence of consent to serious harm for sexual gratification and 2015 revenge porn laws are expanded so that threats to disclose intimate media with intent to cause distress is criminalised. The extraterritorial nature of certain offences is also addressed.
- There are numerous other reforms – particularly relevant to the family jurisdiction are the additions to section 91(14) of the Children Act 1989 (orders barring applications to the court without leave), a prohibition on charging victims for the provision of medical evidence of domestic abuse, and within two years there is to be a report as to the extent to which victims are protected from domestic abuse when using contact centres.
The Domestic Abuse Act 2021 in its final form did not incorporate certain requested protective provisions. To name a couple, calls for a national register of serial domestic abuse and stalking perpetrators were ultimately rejected. Similarly, there were campaigns for better protections for migrant women, particularly vulnerable to abuse because reporting abuse to police is shrouded in fears of detention or deportation. Such amendments (despite support from the House of Lords) did not make their way into the final statute as desired, resulting in a perception that a victim’s access to support and safety when fleeing abuse is determined by their background and immigration status and thus discriminatory.
The practical implementation and operation of the terms of the Domestic Abuse Act 2021 will be determinative in any assessment of its success in protecting victims of domestic abuse. For example, the product of Parts 4 and 7 of the Act will be interesting to observe as limits to local authority budgets and obligations under the statute no doubt collide. The preparation, monitoring and evaluation of the effectiveness of a local authority’s strategy as required by section 51(7) does not automatically guarantee positive outcomes. Similarly, a period of review may illuminate us as to the success of DAPNs and DAPOs both in conjunction with and compared to the protections (e.g. pursuant to the Family Law Act 1996) which are already available. The prohibition on cross-examination in person will presumably ameliorate the experience for victims in litigation, but it remains to be seen whether abuse might continue to be perpetuated by other features of the process, for example by significant and distressing delays caused by section 65 of the Act.
The Domestic Abuse Act 2021 may best be characterised as a prologue or early chapter to the management of domestic abuse. Guidance and regulations underpinning the statute may cast more light on just how protected victims will be. The scheduled reports, strategies and guidance referenced within the Act are indicative of just how much of a work is still to be done. In many ways, time will tell just how effectively the new legislation tackles domestic abuse. The forms of domestic abuse are mercurial and increasingly invidious as society changes and technology develops. The law must evolve in tandem.
Julia Townend, Barrister specialising in family law, 4 Paper Buildings
  EWCA Civ 448
 In the House of Commons as the Domestic Abuse Bill underwent its Second Reading on 2 October 2019
  EWHC 1987 (Fam)