following family law news recently may have spotted a connection lost on some
of our law-makers. In August, the Home Office launched
Strengthening the Law on Domestic Abuse – A Consultation
posed the following questions:
- Does the current law adequately provide sufficient protection to
victims of domestic abuse?
- In what ways could the law be strengthened?
- How would any changes you suggest be practically implemented?
- Does the current law sufficiently capture the Government’s
non-statutory definition of domestic abuse?
The consultation focuses on the
merits of creating of a discreet criminal offence of domestic abuse. It is,
however, silent as to whether the law is in equal, or even greater, need of
‘strengthening’ within the civil jurisdiction. The consultation acknowledges
that ‘changing the law can only ever be
one limb of our overarching strategy to end domestic abuse’. If these
‘limbs’ are to be co-ordinated effectively, the role of the family courts
should also be considered.
A particularly crucial oversight
is evident in the multiple (seven) references in the document to the Government’s
‘non-statutory’ definition of
domestic abuse. Family law practitioners will be aware that the Government
in fact created such a statutory
definition of domestic abuse. It is set out in the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO). It is arguable that, had this
definition been given full effect in practice, we may have been be a
significant step closer to an ‘overarching strategy’.
Schedule 1, para 12 of LASPO
defines domestic violence as:
'any incident or
pattern of incidents, of controlling, coercive or threatening behaviour,
violence or abuse (whether psychological, physical, sexual, financial or
emotional) between individuals who are associated with each other.'
The purpose of this definition is
to set out the scope of those who should qualify for private law family legal
aid as ‘victims of domestic violence;’ ie the remit of the so-called ‘domestic
violence gateway'. The problem, however, is that the good done by the 2012 Act
in linking the statutory and non-statutory definitions of domestic abuse has
apparently been curtailed in subsequent regulations.
On 19 September, Rights of Women were successful in their application for permission to judicially review regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, made under s 12 of LASPO
. Section 12 gives the Secretary of State for Justice power to make
regulations dealing with, inter alia, the form and content of applications for
legal aid. Regulation 33 has, however, provided a mandatory and exhaustive list
of the types of evidence that must accompany an application for legal aid from
anyone seeking legal representation as a ‘victim’ of domestic violence. As
practitioners will know, these evidential requirements have effectively created
a 24-month limitation period, and made it almost impossible to obtain legal aid
as a survivor of the emotional, psychological or financial abuse, despite
falling within the statutory definition of ‘controlling and coercive
Mr Justice Burnett was persuaded
that there is at least an ‘arguable’ case that regulation 33 is
LASPO. It is hoped that a
substantive hearing of Rights of Women’s case will be heard before Christmas.
As for the rest, there is perhaps
an equally arguable case that the Family Law Act 1996 could benefit from
revision. The tool with which domestic abuse is most frequently redressed in
the family courts is of course the non-molestation order. One does wonder
whether its standard prohibition against ‘intimidating, harassing and
pestering’ the applicant really equips the police to intervene amidst the
intricate power-play of ‘controlling and coercive behaviour’? Is ‘pestering’
really at the heart of domestic abuse? If the Government is seriously
considering criminalising domestic abuse, there is a powerful argument for
concomitant reconsideration of the corollary civil remedy.
Ultimately, however, no matter
what tweaks are made to the statutory schemes – civil or criminal – the point is
academic unless those caught up in abusive relationships have practical means
of escaping them. Only when survivors are assured the effective access to the
courts required by Art 6 of the ECHR can a coherent strategy against
domestic abuse really be said to be in place.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.