The Domestic Abuse Act 2021 – transformational legislation or a missed opportunity?

A “once-in-a-generation opportunity” claimed Theresa May, the then Prime Minister when speaking to the BBC back in October 2019 when the original bill was introduced to Parliament,[1] a sentiment later echoed by the Lord Chancellor, Lord Buckland, during Parliamentary debate[2] and,  lauded as a “…landmark piece of legislation which will be transformational in better protecting and supporting victims of domestic abuse and their children, and bringing their perpetrators to justice” by Baroness Williams of Trafford who, co-sponsored the Bill, in her letter to Peers published on 27th January 2021[3]. They were, of course, talking about the Domestic Abuse Bill[4] which was finally, after many setbacks, much challenge and contestation and, many years of dedicated, passionate, and seemingly tireless work of many, including many who are survivors of domestic abuse, given the Royal Assent on Thursday 29th April 2021 and is now law. Given the devoted efforts of so many and the desperate need for transformation in how the justice system protects and supports victims of domestic abuse and their children, it seems churlish to criticise the fruit of their labours but, an examination of what the Bill could have contained inevitably leads to the conclusion that this legislation, whilst landmark in nature, misses its so-called “once-in-a-lifetime opportunity.”

For the family jurisdiction the Act is extremely timely as the need to transform how cases involving allegations of domestic abuse has become increasingly urgent and efforts to answer that need have been gathering momentum over recent years. In June last year the MOJ’s Independent Panel (‘Harm Panel’) published its final report “Assessing Risk of Harm to Children and Parents in Private Law Children Cases”[5] and on 30th March this year the Court of Appeal issued the first landmark judgment in this field since 2000[6] when its decision in the conjoined appeals in Re H-N [2021] EWCA Civ 448[7] was handed down. Consequently, the passage of this legislation provided a most timely opportunity to contribute to transforming for the better how the family (and criminal) jurisdiction manage such cases.

The Harm Panel identified ‘four overarching barriers to the family court’s ability to respond consistently and effectively to domestic abuse and other serious offences namely resource constraints, the adversarial nature of family proceedings, the family court’s apparent ‘pro-contact culture’ and, the way in which the different jurisdictions and agencies work in silos. A fundamental issue is the difficulty in securing legal aid for such cases and the consequences of the same. As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2021 (LASPO) legal aid has been means-tested in such cases effectively denying many adequate access to justice. In turn this had led to litigants in person being a common feature of these cases. A welcome change which will be effected by the Act is a statutory prohibition on unrepresented alleged perpetrators cross-examining the alleged victim. However, despite the advocacy of the Bar Council and others, the opportunity to reverse the swingeing effects of the LASPO 2021 abuse, was ignored. Similarly, the Bill failed to grasp the opportunity to tackle the apparent ‘pro contact culture’ of the family court by reversing the presumption in favour of contact enshrined in law by section 1(2A) of the Children Act 1989[8] and case law. Had statutory reversal of that presumption been a step too far, the Bill could have tempered that culture by creating a statutory presumption that in cases where domestic abuse and harm to the child(ren) is proved direct contact is contraindicated.

Within the criminal jurisdiction the Act similarly offers some progress whilst simultaneously eschewing the opportunity to deliver other statutory change and swerves the opportunity to embed structural change in statute. On the plus side, efforts to create a specific offence in respect of strangulation have succeeded; this will bring solace to many and, if the experience in New Zealand is a marker, will “help police (and others) identify this critical risk factor in the overall response to domestic abuse”[9].  Further, the ‘revenge porn’ offence is extended to include threats to disclose intimate images and the offence of controlling or coercive behaviour can be committed post separation.  These are all positive steps to be welcomed.

Antithetically, there are some significant missed opportunities. Significantly, the Commons stood firm in rejecting the Lords’ efforts to extend the so-called ‘householder defence’ to victims of domestic abuse on the stated basis that the defence of duress is sufficient to address this issue. This, in the face of evidence gathered by the Centre for Women’s Justice illustrating that the defence is not consistently effective. A feminist legal critique would argue that the failure to extend this defence reflects the structural gendered discrimination that remains inherent in the criminal justice system. Indeed, it could be argued that deep-seated gender discrimination and stereotypes, if not outright patriarchy, is the crux of the decision not to include misogyny, either as a crime or as a means to categorise and monitor offending. Equally disappointing is the decision not to create a so-called register of stalkers and serial perpetrators modelled on the Violent and Sex Offender Register (Visor) which holds information about those cautioned, convicted or released from prison for a sexual offence against children and adults.

Applying a human rights framework to the Act results in further disappointment. Despite valiant and sustained lobbying efforts by many groups, the Commons rejected the Lords’ amendments that would have extended the protections provided for by the Act to migrant victims of domestic violence who have no recourse to public funds. On 14th June 2019 the Joint Committee for the Draft Domestic Abuse Bill published a report outlining their recommendations for the Bill. These included recommendations aimed at addressing the needs of migrant women who have no recourse to public funds. The Home Office conducted a review and published its findings in July 2020. In a response that can only be described as feeble, the Government claimed, despite that review being comprehensive, that a pilot scheme to “help gather the data that is needed to develop sustainable solutions for all migrant victims of domestic abuse over the long-term”[10] is required.

The refusal to include such migrant victims is clearly prima facie discriminatory. Lamentably, in adopting this stance the Government has further postponed the opportunity, which has been in existence since 2012, to ratify the Istanbul Convention. The Convention is recognised globally as the ‘gold standard’ on addressing violence against women and girls. The UK signed the Convention at the first opportunity in 2012 but since then has been dragging its feet in terms of ratification. A key sticking point in ratifying the Convention is the requirement effected by Articles 4(3) and 59 that support for victims of domestic abuse is also extended to migrant women. Acceptance of this requirement would have eased ratification of the Convention at a time when the UK is seeking to reassert its position on the global stage and assert its human rights credentials. This is indeed a missed opportunity.

In conclusion therefore it is tempting simply to be critical and say that the Act misses the lofty ambitions espoused by several key politicians and in doing so it disappoints in so many ways. However, the fact that we have a Domestic Abuse Act at all, and one that sets out a comprehensive definition of ‘domestic abuse’ for the first time, makes it deserving of the adjective ‘landmark.’ Indeed, there is much to welcome in this new Act and quite how effective it is will, as ever, depend very much on those of us tasked to bring it to life and give it effect. Here’s to improving the way in which we deal with cases of alleged domestic abuse for the betterment of us all, especially the survivors.

 Celestine Greenwood, barrister, Exchange Chambers

[1] https://www.bbc.co.uk/news/uk-politics-49910926

[2] https://www.robertbuckland.co.uk/news/justice-secretary-robert-buckland-says-new-laws-including-non-fatal-strangulation-law-will

[3] https://www.gov.uk/government/publications/domestic-abuse-bill-2020-letter-from-baroness-williams-to-peers-following-second-reading/letter-from-baroness-williams-to-peers-accessible-version

[4] https://bills.parliament.uk/bills/2709

[5] https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases

[6] Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FCR 404; [2000] 2 FLR 334: https://www.bailii.org/ew/cases/EWCA/Civ/2000/194.html

[7] https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf

[8] https://www.legislation.gov.uk/ukpga/1989/41/section/1

[9] https://www.theyworkforyou.com/pbc/2019-21/Domestic_Abuse_Bill/10-0_2020-06-16a.329.3

[10]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897472/Migrant_Victims_of_Domestic_Abuse_-_Review_Findings_v.3._FINAL.pdf

 

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