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The Domestic Abuse Bill: a long-awaited overhaul or flawed legislation with an implementation problem?

Hannah Gomersall, barrister at Coram Chambers, explores the proposed reforms set out in the government’s Domestic Abuse Bill: its scope, workability and whether the Family Court will be able to cope with the ensuing workload.

Hannah Gomersall, barrister at Coram Chambers 

Why is the Bill needed?
This Domestic Abuse Bill has been a long time coming.  It follows damning headlines in the national media over many years exposing how the family courts (as well as policing and the wider justice system) are failing victims of domestic abuse.

Hayden J in Re A (A minor)(fact finding; unrepresented party) [2017] EWHC 1195 (Fam) described one aspect of the law which is to be changed by the Bill (when enacted) in the strongest terms:

"It is a stain on the reputation of our family justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator…the process is inherently and profoundly unfair. I would go further it is, in itself, abusive…the inquity of the situation was first highlighted 11 years ago…it has taken too long. No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos".

Munby P quoted Hayden J's remarks in a March 2018 lecture 1 (shortly before his retirement as President of the Family Division), scolding the government for dragging its feet on cleaning up the "stain" on our system.

The storm clouds had been gathering since LASPO took effect in 2013 and the family courts were flooded with litigants in person. 2016 saw the Court of Appeal declare invalid the Civil Legal Aid (Procedure) Regulations 2012 in so far as they practically prevented victims of domestic abuse obtaining legal aid where the abuse had occurred more than 2 years ago, or where the abuse was financial ((Rights of Women) v Lord Chancellor and Secretary of State for Justice  [2016] EWCA Civ 91) 2. A 2014 attempt to create a new Domestic Violence Protection Order ("DVPO") to be issued by magistrates' courts resulted in notoriously patchy implementation of an order which was in any event described as "toothless". A 2017 freedom of information request 3 showed that the Metropolitan Police recorded just 138 crime incidents in 2016 in which a DVPO was granted.

This political pressure led to Theresa May making a manifesto commitment at the 2017 general election to deliver protection for victims of domestic abuse "in law through a new landmark Domestic Violence and Abuse bill" 4. After a lengthy consultation, the draft Bill is finally here. Does it live up to the promises? What is the scope? Is it workable? How will the family courts manage its implementation?

What are the key provisions?
 The new Bill 5 is divided into five parts which provide for:

1) a new statutory definition of domestic abuse;

2) the creation of a Domestic Abuse Commissioner;

3) a new regime of Domestic Abuse Protection Notices and Domestic Abuse Protection Orders ("DAPOs") to be made and enforced by the family courts where the application is not brought by the police);

4) a prohibition on litigants in person in family proceedings cross-examining each other in certain circumstances and in such cases the family court has the power to appoint a legal representative to conduct the cross-examination on the person's behalf. This part also gives domestic abuse victims automatic eligibility for special measures in the criminal courts.

5) domestic abuse offenders to be subject to polygraph testing as a condition of their licence. This part also deals with domestic violence disclosure scheme and local authorities being required to grant a new secure tenancy to a social tenant when that tenancy is being granted following domestic abuse (and the person previously had/has a secure lifetime or assured tenancy).

This article will focus in particular on the third and fourth provisions in the Bill, which are of great significance to family court practice and orders.

Domestic Abuse Protection Notices and Orders

An outline

The flawed Domestic Violence Protection Orders will be replaced by a new system of Domestic Abuse Protection Orders ("DAPO"). It is more than a rebrand. The new orders are to be almost limitless in scope: the court can impose restrictions and active requirements on the perpetrator (including electronic tagging) and there are no limitations on the duration of a DAPO.

In the first instance, a senior police officer will be able to issue a Domestic Abuse Protection Notice to a person where there are reasonable grounds for believing that that person ("P") has been abusive towards a person aged over 16 to whom P is personally connected. The officer must also have reasonable grounds for believing that it is necessary to give the notice for the protection of the victim.  The notice may require P not to abuse the person, not to contact the person or, where P and the person live together in England and Wales, prohibit P from evicting the person, entering the premises (or forcing P to leave the premises), or coming within a specified distance of the premises.

The application for a Domestic Abuse Protection Order must then be brought by the police before a magistrates' court within 48 hours.

An application for a DAPO by any other eligible applicant is made to the family court. Significantly, the applicant does not have to be the person 'connected' to the perpetrator nor the person for whose protection the order would be made. The idea is that regulations will specify those entitled to bring an application and that these will include local authorities, probation services, independent domestic abuse advisers or other support workers. An application could also be brought by friends or family of the victim (or indeed by any person), though they would require the court's leave to apply.

The High Court or the Family Court may also make a DAPO without an application in any family proceedings in which both P and the person for whose protection the order would be made are parties. This would replicate the court's present powers to make non-molestation orders in such circumstances.

The test is simply whether the court is satisfied that P has been abusive towards a person to whom P is personally connected and that the order is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse (clause 28). The abuse can have taken place outside of England and Wales or before the coming into force of the Act. There are also provisions for the making of a DAPO without notice.

Whilst the court does have to take into account the views of the person for whose protection the order is being made, the court can make an order in circumstances where that person does not consent to it being made. 

Under the new regime, the court may impose whatever requirements it considers necessary to protect the person for whose protection the order is made from domestic abuse or the risk of domestic abuse. There is no limit placed on what the order can require, nor its timeframe, as long as it is necessary to protect the person. It can include positive requirements (such as orders to attend parenting courses, perpetrator programmes, substance misuse programmes etc.) as well as restrictions/prohibitions (for example on contacting a person or attending their address).

Significantly, the DAPO may require P to undergo electronic monitoring/tagging for up to 12 months. There are also 'notification requirements' attached to a DAPO – P must keep in touch with the supervisory person in accordance with instructions given and also notify them of any change of address. The court can also impose additional notification requirements on a case-by-case basis (such as P informing the supervisory person of new relationships).

The current DVPOs do not have a criminal sanction if they are breached whereas the new DAPO regime contained in the Bill, would make breach of an order a criminal offence punishable by up to 12 months' imprisonment on summary conviction and up to 5 years' imprisonment on conviction on indictment. Significantly, a breach could alternatively be punished as contempt of court.

If the application were made in the family court, a person could apply to the family court for the issue of a warrant for P's arrest if there were reasonable grounds for believing the DAPO had been breached (the application would need to be made by the protected person, the original applicant or another person with the court's leave).

Finally, Part 5 of the Bill makes it clear that a polygraph condition can be imposed on a person who received a custodial sentence for breach of a DAPO when they are released on licence (in the way currently imposed for sexual offenders).

The DAPO regime is extensive. Positively, it unifies approaches between criminal, family and civil jurisdictions. It simplifies multiple existing orders (non-molestation orders, occupation orders, restraining orders, protection against harassment orders) into one scheme. The 'toothless' DVPOs are gone and the courts can be constructive – ordering positive 'improvement' requirements on the perpetrator such as parenting courses or drug rehabilitation programmes.

What will need to be carefully considered is the Family Court's ability to cope with the volume of applications and the contentious nature of the applications. Currently, large numbers of respondents who have been made subject to non-molestation orders do not ultimately bother to challenge the making of those orders. The court doesn't have routinely to embark on fact-finding hearings to determine whether the abuse happened or not -  respondents often feel that an order will not be so onerous as to justify the effort and cost of such a dispute. The court may often suggest if the respondent isn't going to harass or pester the applicant anyway, that there is nothing to be lost by keeping a non-molestation order in place. It seems inevitable that the greater powers, scope and stigma of the DAPO will make it much more likely that respondents will challenge applications for such orders. This will entail not only added emotional stress for the victims, but significant court resources and time to reach a fair resolution.

There is also an Article 6 ECHR question. It is likely (though far from certain) that the applicant will have legal representation via the legal aid scheme to bring their application. The respondent will almost certainly not. Family courts routinely making such draconian orders – with electronic tagging requirements, activity directions and higher chances of breaches (e.g. P missing his substance misuse appointments etc.) – without P having recourse to any legal advice, may not be compatible with P's right to a fair trial.  

Finally, the idea that P could be directed to attend a perpetrators' course against their wishes or without having accepted any of the abuse found by the court would condemn the process before it has started. Most reputable courses would not work with perpetrators in such circumstances. There is already a significant problem with the availability and resourcing of these programmes and this will need to be addressed quickly if the new DAPO regime is to come into force. 

Prohibition on cross-examination
At long last, the Domestic Abuse Bill proposes a long overdue statutory bar on litigants in person cross-examining witnesses in the family courts in certain circumstances.  Clause 50 of the Bill inserts a new provision into the Matrimonial and Family Proceedings Act ("MFPA") 1984 addressing this issue.

No party who has been convicted of, cautioned for, or charged with, a specified offence may cross examine a person who is the victim or alleged victim of that offence. Likewise, no party who is the victim or alleged victim of the offence may cross examine the perpetrator or alleged perpetrator. Where an on-notice protective injunction is in force, the same applies.

In other cases, the proposed section 31T MFPA would allow the court to give a direction prohibiting cross-examination where the "quality condition" or the "significant distress" condition is met provided that it would not be contrary to the interests of justice to give such a direction.

The "quality condition" is met if the court considers that the quality of evidence given by the witness on cross-examination is likely to be diminished if the cross-examination is conducted by the party in person and would be likely to be improved if a direction were given to prevent this.

The "significant distress" condition is met if the cross examination would be likely to cause significant distress to the witness or party and that distress would be more significant than would be the case if the witness were cross-examined other than by the party in person.

A number of matters to which the court must have regard when determining whether these conditions are met are set out at 31T(5).

The court will then go on to consider whether there is a satisfactory alternative to cross-examination in person. If there is no satisfactory alternative to cross-examination or other method to obtain the evidence the witness would have given under cross-examination, the court must invite the party to arrange for a qualified legal representative to act and require them to notify the court within a specified period if this has been secured.

If the party has notified the court that no qualified legal representative is to act for the purpose of cross-examining the witness or no notification is received, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party. If the court decides that it is, the court must appoint that representative (chosen by the court) to cross-examine the witness in the interests of the party.

Provisions for the payment of the appointed representative will be dealt with by way of regulations to be made subsequently. 

Section 31V(7) states: "A qualified legal representative appointed by the court under subsection (6) is not responsible to the party."

It is very welcome that the government has finally addressed this "stain" on the family justice system. The practice of judges being expected to cross-examine witnesses on behalf of a party was always questionable in terms of its compliance with Article 6 as there was an impossible balance between the judge conducting the proceedings in an impartial manner and putting one party's case to a witness. It is positive that the Bill does not simply continue to put judges in this uncomfortable position but rather provides for qualified legal representatives to fulfil this important role.

However, there must be some ethical questions about the basis on which a legal representative can act (i) during such a small portion of the hearing, attending mid-way through and (ii) without any responsibility to the lay party. What if the representative did not assert the party's case in cross-examination properly? Is a legal representative who is not selected by a capacitous party and cannot be dismissed by them really their legal representative? Where will the representative's ethical duties lie? How, for instance, is this compatible with a barrister's core duties set out in their code of conduct?

To take a simple analogy: a surgeon is performing an appendectomy. The patient has opened themselves up and created a mess. A surgeon is then instructed to remove the appendix without advising the patient on whether this is necessary or what procedure should be used. The surgeon then leaves the operating theatre without closing the incision or undertaking any checks, consequential procedures or follow-up care. The patient has no ability to select their surgeon or refuse the surgery, and no recourse if the surgeon accidentally takes out the wrong organ.

The court instructing a legal representative for a discrete section of the hearing amounts to a 'sticking plaster' over the gaping hole that cuts to legal aid have left. It represents a fundamental misunderstanding of the purpose, duties and benefits of legal representation and, whilst a step in the right direction, there must be serious doubts as to whether this provision would be compatible with Article 6.

Criticism was levelled at the Bill by Labour MPs and charities who pointed out its limitations in scope. For vulnerable groups of migrants and refugees without secure immigration status, there are no provisions to prevent arrest and deportation being the police response to a victim seeking help. Further, the Bill is restricted to England and Wales, the government saying that the issues covered are devolved issues for Scotland and Northern Ireland.

There is no doubt that this Domestic Abuse Bill is creative and ambitious in its attempt to unify and reform both the family and criminal jurisdictions. Unfortunately, it does have the air of 'drafting by committee' and it is unclear how these provisions will fit with the existing menu of options before the Family Court or work in practice.

The Bill purports to offer almost every possible protection for victims of domestic violence but whether this is backed by the resources required (in the Family Court, support programmes for victims and perpetrators, practical policing, and legal aid reform) to make implementation of its provisions effective remains to be seen.






4 As explained in the explanatory notes to the draft Bill, paragraph 1.