Domestic Abuse Bill

Written evidence submitted by the Magistrates Association (DAB15)

MA Briefing on the Domestic Abuse Bill: House of Commons Public Bill Committee

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Introduction

1. The MA welcomes the underlying aims of the Domestic Abuse Bill, particularly with regard to its intentions to promote awareness of domes tic abuse and to reform the justice system with victim [1] safety as a priority. We do however have concerns around some specific proposa ls put forward in the Bill . W e have limited our comments t o those that relate most directly to the expertise and remit of the MA.

The statutory definition of domestic abuse

2. We welcome the government’s decision to introduce the statutory definition of domestic abuse, which has the potential to help ensure that all agencies and bodies are able to operate under a commonly understood framework. We would however like to make the following observations on the proposed definition:

a) We have some concerns with the term ‘economic abuse’ being used in place of ‘financial abuse’, the latter of which is used in the current cross-government definition. We would suggest that without clear guidance there is potential for confusion between the two concepts. With financial abuse arguably being more generally understood, there is a risk that the definition could inadvertently narrow instead of widen how domestic abuse is understood. We welcome the assurances that the government has put forward on this in their consultation response, which indicates that the statutory guidance will expand further on the different types of abuse covered and the forms that they can take. This will be crucial in ensuring that it is widely understood and consistently applied.

b) When considering how the definition may be interpreted in practice in the courts, we would also like to note that the inclusion of economic abuse may give the impression that issues of child maintenance can be dealt with and resolved during family proceedings. It is important that these issues are raised, so the court can take account of alleged abuse through withholding child maintenance. If, for example, child maintenance is withheld, and it has an adverse effect on a party’s ability to acquire, use or maintain money or property, or to obtain goods or services, this could impact on the decision of the court. However, the court cannot actually resolve the issues around the payment of child maintenance and it could cause confusion if parties do not understand that. We do not have a view on whether family proceedings should be able to deal with these types of disputes, but would suggest that as the definition is formulated and statutory guidance developed, clarity on the issue as it currently stands should be ensured to manage expectations of all parties.

c) With regard to the definition of ‘personally connected’ within the Bill, we believe that as proposed, the wording may not cater for instances where someone over the age of 16 is living in a household with someone who is not their parent and does not have parental responsibility (for example a step-parent), and is subsequently abused by that person (or the other way round). In such circumstances the individuals are neither relatives nor in an intimate personal relationship, and thus appear to fall outside the remit of the parameters currently described. This may be an unintended gap in the definition which requires further consideration.

Domestic Abuse Protection Notice and Domestic Abuse Protection Order

3. While acknowledging that more can be done to protect victims of domestic abuse, the MA has concerns with the proposals to create the new Domestic Abuse Protection Order (DAPO), which could lead to disproportionate outcomes if taken forward as proposed.

4. The DAPO can include both positive and negative requirements, can be placed on an individual without a specific time limit, and can include a range of notification and electronic monitoring requirements (with the latter being restricted for up to 12 months). While many of these components are to be welcomed in that they can provide robust assurances for victims, we believe that very clear guidance will be required to ensure that the orders are used proportionately, and without setting up individuals to fail. This is all the more pressing because the orders will lead to criminal sanctions if breached, and can also be put in place without a finding of guilt for a criminal offence or finding of fact in a family jurisdiction.

5. With regard to those that are able to make an application for the order, we do have some reservations about allowing a DAPO to be made without the victim’s approval; this risks putting the victim in danger, or having adverse implications for their later engagement with any court proceedings. We note the requirement for courts to take into account the wishes of a victim before making an order, and the fact that the third parties allowed to apply will be restricted to police and other specialist services, which are important and welcome safeguards. We also acknowledge that this approach does have the potential to take the burden away from the victim in having to apply for the order, which in some circumstances will clearly be beneficial. However, we would suggest that this issue should be monitored closely if taken forward, to ensure it does not inadvertently lead to adverse outcomes for those that the order seeks to protect.

6. We would also like to highlight the specific challenges that the DAPO may create in the context of the family court. The introduction of the DAPO would mark a significant shift in the powers available to the court, when compared to the use of other disposals such as non-molestation orders (which do not include positive or notification requirements). With the potential for a DAPO to provide more onerous restrictions on the respondent, and with the family court only requiring a civil standard of proof when considering domestic abuse allegations, it is likely that more applications for DAPOs will be challenged than is currently the case for non-molestation orders. Ultimately, we are concerned that this could place additional burdens on court time, not to mention the possibility of additional stress for the victims.

7. A further concern for the family court is with regard to the suitability of a Domestic Abuse Perpetrator Programme (DAPP) being placed on an alleged offender as part of a DAPO prior to any finding of fact, or without any previous finding of guilt in a criminal court. As is widely acknowledged, DAPPs are most effective when culpability has been accepted by the participant, and the offender in question has shown a willingness to change their behaviour. Imposing such requirements without engagement from the respondent could be counter-productive, not to mention an ineffective use of valuable resources.

Cross-examination of alleged victims in person in the family courts

8. We welcome the proposals to prohibit the cross-examination of alleged domestic abuse victims by their alleged abusers in the family courts. It is also positive that the provisions not only set out specific instances in which cross-examination should be prohibited (i.e. where the accused has been convicted of or given a caution for a domestic abuse offence, or where an on-notice protective injunction is in force) but also give the court specific powers to prevent cross-examination in other specified circumstances i.e. via the ‘quality condition’ and the ‘distress condition’.

9. With regard to how the prohibitions may work in practice, we would like to emphasise that the structure of family proceedings differs significantly from that of criminal proceedings (which has an existing scheme of prohibitions that this framework seems to be closely based on). For example, in criminal proceedings a complainant and defendant will only come together once (i.e. at the trial itself), but during the course of family proceedings the parties are likely to be in attendance for several hearings. It is not currently clear as to whether advocacy will be provided for the duration of proceedings, or only for specific hearings where requirements under the ‘quality’ or ‘distress’ conditions are most pronounced, or where oral evidence will be heard.

10. It is also important to note that in instances where the court appoints a qualified legal representative to cross-examine a witness, the draft legislation states that the representative is not responsible to the party. A legal representative may also only be instructed for a relatively small proportion of the proceedings (potentially mid-way through). This may raise questions around the ability of the representative to advocate effectively. While the proposed measures for the court to appoint a legal representative are overwhelmingly positive and to be welcomed, these issues will need to be monitored closely.

Further points to consider

11. While not a specific legislative proposal, we would also like to raise the Government’s commitment to explore options to develop ‘a better and more consistent approach’ to information sharing across court jurisdictions. Where domestic abuse is being dealt with in both criminal and family jurisdictions, greater liaison between the two jurisdictions has the potential to reduce the distress of victims and children (who often have to talk to multiple agencies), and can also reduce the chances of conflicting court orders. While data protection must be addressed, we would welcome work to ensure that information is shared when appropriate.

12. Currently there is usually very little interaction between the adult criminal court and family court in relation to specific cases, especially when the cases are private family law rather than public law.

13. Often parallel cases that relate to domestic abuse incidences in the two jurisdictions run on very different timescales, with criminal cases dealt with by magistrates often being resolved well before the same issues come before family court in a private family law case.

14. In addition, there is very little liaison between the different jurisdictions on a specific case, with little sharing of relevant information occurring.

a) Information from family court to criminal court: There is no requirement for existing orders from a family court to be disclosed in any criminal case, unless there are safeguarding issues – which would be identified by the National Probation Service (NPS) when drafting a Pre-sentence Report (PSR). If the Local Authority was aware of child safeguarding issues arising, then the NPS could check with them and therefore be aware of current or on-going interventions. However, outside of cases where there is an official identification of safeguarding, no individual is responsible for checking whether a defendant is currently on a DAPP ordered by family court. Of course, the defendant may disclose this to probation or the court, to indicate they do not need to be sent on an additional programme.

b) Information from criminal court to family court: The family court would be aware of any criminal convictions, however further questions would have to be asked either by the bench or CAFCASS officers to find out whether one party is either currently on or has completed a Building Better Relationships (BBR) course as part of a court order. It is likely that CAFCASS would find out about a party having done a BBR in the course of doing a Section 7 report. 

15. In addition, there are a number of differences in relation to the way the two jurisdictions treat programmes for domestic abuse perpetrators.

a) Available programmes: although various programmes might be ordered as part of a criminal sentence in relation to a domestic abuse case, the usual one is the BBR; whereas family court would normally order a DAPP.

b) Accreditation: probation are responsible for accrediting any programmes used as part of a criminal sentence, whereas it would be the responsibility of CAFCASS to decide which programmes are appropriate for use as part of a family court order. We are aware of some areas requiring any DAPPs to be accredited by Respect before they can be ordered by family court. This accreditation provides a certain level of confidence for the bench, as it means any programme must use interventions with a proven evidence base, the standard of intervention provision is regularly monitored, and there must be support provided to victims alongside interventions for the perpetrator.

c) Outcomes: in relation to a criminal sanction, the focus is on completion of a programme but in family court proceedings, the focus is on what engagement there has been with the programme and whether there has been a positive change in behaviour.

October 2019


[1] Throughout this document we frequently refer to ‘victims’ or ‘perpetrators’ of domestic abuse, for the purposes of readability. In practice however, this definitive labelling is only appropriate if there has been a criminal case establishing guilt, or in family proceedings if there has been an admission or finding of fact that the allegations took place.

 

Prepared 31st October 2019