What does the draft Domestic Abuse Bill mean for victims of domestic violence?

The Bill seeks to:

• remove the presumption that a child should spend time with the non-resident parent when that parent has been the perpetrator of domestic abuse;
• prohibit perpetrators of domestic abuse from cross-examining their victims during proceedings;
• introduce a domestic abuse protection order which appears from the draft Bill to go further in the protection of a victim of domestic abuse than the current non-molestation order under the Family Law Act 1996, and
• bring changes to the terminology of domestic abuse to include the introduction of the term ‘economic abuse’ (in place of the term ‘financial’ abuse) as well as further highlighting that domestic abuse takes a number of forms including control and coercion, as well as physical, emotional and sexual abuse.

In October 2017, a new practice direction came into force within children proceedings obligating courts to consider at the beginning of every case involving a child (and to keep it in mind throughout) whether domestic abuse is a factor. Where allegations are made, the Court must consider whether a fact finding hearing is required, to establish whether the allegations are true and if so, whether they have an impact on the final order the Court will make regarding the arrangements for children. The purpose of establishing the facts in any case involving domestic abuse early is, amongst other things, to ensure that any report produced during the case considers the domestic abuse and its effect both on the child and also on the victim, ensuring that the main carer is not subjected to further domestic abuse through contact, for example by removing unsafe handovers and the ability for the perpetrator to continue controlling the victim. The new Bill proposes to bring about these measures to all family proceedings, rather than just those dealing with arrangements for children, which is likely to be a very welcome step for both victims and those organisations who support them.

The Court must consider whether special measures should be put in place to protect victims of domestic abuse during hearings. These can include screens; the use of separate entrances and exits; reserving rooms for the victim for use whilst waiting at Court; and the Court asking questions of the victim rather than the perpetrator doing so directly.

Where domestic abuse has been raised as an issue, the court must already consider the appropriateness of the perpetrator being able to cross examine the victim during contested hearings and where necessary, put measures in place to protect individuals. For example, questions going through a Judge, rather than being asked by an alleged perpetrator directly, to ensure the victim is not further subjected to abuse. The new Bill appears to take this further, by seeking to prohibit a perpetrator from cross examining their victim rather than it being a matter for the Court to determine upon the facts of each case, thus removing further uncertainty and anxiety from the victim,  who is going through already emotionally difficult proceedings. This is an issue which has been much more prevalent since legal aid was removed from most family proceedings as perpetrators are more often than not representing themselves in proceedings, removing the buffer of a lawyer dealing with the cross-examination. To see a change to this issue by the bringing about of representative through the Court’s central fund is encouraging, although whether it would be practical given the Court’s already stretched funding is questionable.

The new Bill also seeks to change the presumption that children should spend time with both of their parents. Currently, the presumption is that it is in a child’s best interest to have a relationship with both parents and that this should, wherever possible, be through spending direct time with both parents. This presumption is long-running and has been based on the highly researched effect on children of being deprived of a relationship with a parent. To date, that research has stated that if it is safe then the child should see both parents. The new Bill appears to seek to change that presumption when domestic abuse has been alleged (and presumably found through a fact find hearing). Whether this will actually happen will be interesting to see.

The introduction of a new domestic abuse order which seeks to try and deal with the actual behaviour of the perpetrator is encouraging as currently once the time limit (often 12 months) has concluded under a non-molestation order, the victim is no longer protected, unless there has been cause to ask for an extension. This is regardless of whether the perpetrator has changed their behaviour and mind set. To provide obligations on the perpetrator to attend courses is a step forward in the right direction of attempting to deal with the root of the issue rather than plaster over the cracks.

The new Bill is certainly a further positive step in the right direction for victims of domestic abuse and for those who support them. It will certainly be interesting to watch how these changes unfold.