Family Law

Working towards an end to domestic abuse

A year after Minister of Justice Truss’s proposals for the protection of complainants of domestic abuse from direct questioning by their alleged abusers saw light in the Prison and Courts Bill cl 47 (lost in the June 2017 election), the Government has produced a consultation paper, ‘Transforming the Response to Domestic Abuse’,  on the much wider pallet of all aspects of domestic abuse.

Its introduction (trailed in last year’s Queen’s speech) makes the point that any violence cannot be tolerated; but that it is so much worse ‘when it is carried out by those who are supposedly closest to the victims’. The introduction goes on:

'This Government is committed to doing everything we can to end domestic abuse. To achieve this we need to build a society that has zero tolerance towards domestic abuse and actively empowers victims, communities and professionals to confront and challenge it. We are determined to ensure victims feel safe and supported, both to seek help and to rebuild their lives.'

The document asks for responses by 31 May 2018. 

Domestic abuse is proposed to be defined (at p 13) as:

'Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can encompass, but is not limited to: psychological, physical, sexual, economic, emotional…'

The paper goes on to define ‘controlling behaviour’ as

'…a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.'

‘Coercive behaviour’ is described as ‘an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim’.

As far as it goes – it leaves out some key elements – this definition bears a striking resemblance to Cobb J’s draft which ultimately became FPR 2010 PD12J: Child Arrangements & Contact Orders:  Domestic Violence and Harm; but now applied not just to child contact but to all inter-family relationships.

The consultation paper

The consultation paper concentrates on four main areas: promoting awareness of domestic abuse; the issue of protection and support of victims; the question of how to ‘pursue and deter’ perpetrators; and to improve performance ‘in all sectors’. Of these the lawyer will be concerned with the third element (Chapter 3). This looks first at police response and then at ‘Improving victims’ experience of the justice system’. (Throughout the report speaks of ‘victims’: it shows no awareness that ‘victims’ can only become so if a court finds they have been abused. Best surely to use a neutral term like ‘complainant’ or, in the Family Court, ‘applicant’?)

The report is prepared, I suspect, by mostly Home Office civil servants. It is signed off jointly by the Home Secretary and the Secretary of State for Justice. However, it shows minimal appreciation of the differences in procedure between evidence-giving in criminal proceedings (see the range of provisions and special measures to intimidated witnesses and children under the Youth Justice and Criminal Evidence Act 1999, Pt 2) and the parallel (introduced three months ago) scrawny provision for ‘vulnerable’ witnesses and parties (ie not yet children) in family proceedings.

For example, without mentioning the yawning difference between criminal and family procedures the report (at p 50) correctly summarises the position for witnesses in criminal cases (the careful reader will find two ‘victims’ in this extract, though nothing is yet proved against the person she complains of):

'A range of mechanisms are designed to help support victims to give their best evidence. This includes special measures for vulnerable and intimidated witnesses, prohibiting unrepresented defendants from cross-examining victims, support from the Witness Care Unit [etc]… and criminal justice professionals specially trained in domestic abuse.'

The paper proposes a ‘legislative assumption’ for a special measure direction for ‘victims’ to save the need for any issue to be raised as to the direction. This idea may be a little naïve. It depends on an assumption as to the respondent’s guilt.

Family and civil proceedings: and where do the twain meet?

The paper provides a start. It is to be hoped it will be widely responded to.

From the point of view of a family lawyer, much work needs to be done by the respective departments – both in primary legislation and in rule-making – to decide where is the alignment between family and criminal proceedings. Random thoughts at this early stage follow.

Legislation drafters need please recall that in family proceedings the standard of proof is the civil standard. In criminal, the standard is beyond reasonable doubt. But if the criminal courts are used for enforcement – as now under Family Law Act 1996, s 42A (enforcement of a non-molestation order) – then it must be recalled that the enforced order was only proved to the lesser standard (see analogous comments of McFarlane LJ in Iqbal v Iqbal [2017] EWCA Civ 19). The question then is: did the respondent have European Convention 1950, Art 6(3) compliant rights at the civil (ie family) proceedings stage (I deal with this in the latter part of this article).

Whichever Department of State promotes any Bill, must please be clear how far (as family proceedings) these – in family courts – are intended go beyond immediate members of the family – as proposed by the paper – than in the Family Law Act 1996, s 62. For example it is proposed that the elderly parent is abused by an adult child should have a cause of action in domestic abuse. If that is to be a civil remedy, will it be pursued in the family courts?

Next – and this is squarely with the Ministry of Justice – to what extent will funding be made available for family and other proceedings – and the special measures they demand – to make the Government’s high aims (as set out in the introduction to the paper) work? That is, to what extent will the Lord Chancellor fairly provide legal aid for complainants and for those alleged to have abused; and to make any new scheme work fairly?

And a thought: criminal proceedings are in open court. Why are not the same types of proceedings in open court in the family court? At present most family judges and rule-makers seem to expect them to be kept private? And if so, why? Does that not rather defeat the Home Secretary’s object?