Domestic Abuse Bill

Written evidence submitted by Cris McCurley (DAB09)

Introduction

1. I am Cris McCurley. I qualified as a solicitor in 1990 and specialised in working with victims of domestic abuse (DA) . I am a partner in the North-East practice of Ben Hoare Bell LLP and I am head of the International Family Department. I have been a member of the Resolution Domestic Abuse Committee for approximately 12 years and I am Resolutions National Lead for all forms of harmful practice. I am a national trainer for Resolution. I am also a member of the Law Society Access to Justice Committee . I am a member of the advisory bo ards of Women’s Aid England and Rights of Women. On behalf of the practice I have advised the Government for many years on issues relating to domestic abuse, forced marriage, honour-based violence and FGM. I am also currently working as a sexual violence complainant advocate employed by the PCC in a pilot funded by the Home Office to represent victims of rape in the criminal justice service.

2. In addition, I am a member of the UN CEDAW shadow reporting writing group and have been since 2011 . I have attended the last two enquiries to make representations to the UN commissioners concerning issues relating to domestic abuse and to Legal Aid. I am a member of the Ministry of Justice working group set up in 2016 to consider and amend the regulations for Legal Aid in respect of victims of domestic abuse. I also attended the consultation meeting regarding the Domestic Abuse Bill held by the MOJ on 30 th January 2018. More recently I gave oral and written evidence top the MOJ panel looking at how DA is treated in the family courts.

3. I have read the Bill carefully , including the Government’s FURTHER RESPONSE TO THE REPORT FROM THE JOINT COMMITTEE ON THE DRAFT DS BILL of March 2020, and can see many areas where urgent revision, rewrites and amendments are required if this Bill is to do what it is intended to do by the Home Secretary and the Secretary of State for Justice. More importantly a root and branch enquiry are urgently required into the identification , understanding, treatment of DA in our Court Systems.

Overview

4. We are currently in the grip of a significant crisis in the J ustice system . This is due to cuts to all parts of the system, including specialist providers, court estate , court staff, Legal Aid, the police and, Social Services, in fact every part of the DA sector. M ore children are being taken into care than ever before, and these cases have to take priority in the Court diary , meaning that there is less time to appropriately deal with private law cases involving domestic abuse .

5. Practice Direction 12J gives guidance to all members of family justice service about how cases which involve allegations of DA must be case managed. Its purpose is to identify cases involving DA, risk assess and invoke relevant safeguards. In many cases however PD 12J is "no dd ed through " by a District Judge who will make a note that he has considered this at an early hearing and is satisfied that there is no impediment to contact, even if the abuse were to be proved. This is without any risk assessment being done, or narrative statements being filed. If private law cases are not properly dealt with by FJS they will inevitably return to Court as care cases thus compounding the problem , because victims and children are not being protected . Where risk assessment is carried out, it is not done by experts, so the impact of DA is not clearly identified.

6. In addition Practice Direction 3AA gives guidance on the way in which the court must deal with vulnerable witnesses. This too is rarely raised or followed.

7. The reason for this is:

(a) A lack of Court time due to the above factors;

(b) A lack of specialist services particularly in cases of culturally based violence.

(c) A lack of training in all parts of the system on the impact of DA on both the victims and children.

(d) A systemic failure in the identification and understanding of the impact of DA leading to it being minimized and disregarded.

8. Without a significant cash injection at all parts of the system, any attempt to change the situation is unlikely to have any impact . The anecdotal evidence from family solicitors is that PD 12J is virtually ignored by CAFCASS, legal practitioners and the Court . Cafcass are usually tasked with risk assessment, but as they are not expert in assessing DA, the do not see it.

9. In respect of b ) if domestic abuse cases were conducted by solicitors accredited in DA work by the Law Society or Resolution (as with acting for children in public law proceedings) then it is likely that there would be greater adherence to the requirements of Practice Direction 12J. P ractitioners who are not accreditors did not recognise the significance of abuse, do not ask the right questions to elicit the evidence as victims are inured to it by self-blame, feelings of shame and the fact that many "suffer in silence " and do not mention it unless trust can be established in the solicitor-client relationship . It is skilled work currently being done by practitioners without the skills.

There is much to improve if we are genuinely committed to addressing DA and its lasting impact.

Executive summary of essential amendments

a. The cuts to every part of the Justice estate have left a gaping vo id that will not be fixed by this act . Funding must be ringfenced and properly calculated.

b. PD12 J and PD3 AA must be incorporated into the Act in full

c. IDVAs and ISVAs should have a daily court role in the way that Cafcass now advise and assist the court in order that independent expert assessment of DA is conducted in each case.

d. Funding for refuge and support services must be properly calculated and ring fenced.

e. Each court should have a nominated DA Judge and Court recorder collating information and reporting good and bad practice to the DA Commissioner

f. The DA Commissioner will collate this data and report on compliance to the MOJ

g. Funding must be ringfenced for specialist BME services

h. The DDVC must be extended from 3-6 months and enlarged to any form of visa.

i. The Children Act must be amended so that parental responsibility is not automatically conferred on the fathers of children born or rape or CSE. Such fathers should have no automatic involvement in court proceedings involving such children.

j. Where DA has been raised and a safety, or risk assessment has not been carried out by a DA expert , there must be no direct unsupervised contact in order to safeguard the victims od DA and their children, who must also be recognized as victims.

k. There should be a new stand alone offence of strangulation during sex, and there must be no defense of consent in cases of ‘ Sex game gone wrong’ where death or injury results’

l. The Istanbul Convention must be fully ratified.

Proposals for a better outcome

Implementation of Practice Direction 12J

10. If Practice Direction s 12J and 3AA w ere appropriately implemented then this would make a significant difference to protection for vulnerable women and children within the family justice arena. In order to ensure uniformity of compliance the Practice Direction should in its entirety be enacted into the DA Bill with one specific amendment: when His Honour Mr Justice Cobb prepared the original revised PD 12J he specifically indicated that risk and vulnerability of the victim in each case should be expertly assessed by DV experts . The final version of the Practice Directions state only that there should be an assessment . It is vital that frontline DA experts such as IDVAs should be tasked by the Court to independently undertake an assessment of the impact of the abuse on that specific victim and her children . They are the experts . I have direct experience of CAFCASS officers who have undertaken assessments w ho do not recognise understand the depth of the impact of the abuse on the victim and children’s everyday life and the lives , or the resultant impact if they were forced into contact with the perpetrator . They miss the potential barriers that would prevent victim ’s ability to g ive her best evidence and exercise her right to equality before the law . If DA is not recognised as such then PD 12J automatically fails , and it is currently failing badly.

11. I have seen many cases where as a DA specialist I have been able to identify the victim as being impacted by the abuse but this is not later picked up by the professionals or by the Judge. I have seen judges say things like "I preferred the evidence of the father who gave his evidence very clearly and with some emotion . The mother did not in any way appear afraid of the father when giving her evidence, she did not cry, she appeared cold and almost robotic… ": this case was one of severe honour based abuse but it was not recognised by the Tribunal, by CAFCASS or by children social care , nor was the victims PTSD. Contact was ordered.

12. Forms of abuse such as international abandonment/dowry abuse/gas lighting/coercive control are often not picked but are often some of the most debilitating in terms of impact on the victim and children . The Practice Direction and assessment of DA are only as good as the knowledge of those administering them. If abuse is not recognised or the impact not seen , the impact on child ren and abuse d parent is not taken into account . For this reason , I propose that the Act should be amended so that IDVAs who are totally independent of the victim are recognised as the people who should do the risk assessment at the outset of each case. They are the ones with the real expertise but this is very rarely recognised .

13. Where there are no safeguarding checks , there should be no order for interim contact where DA is raised .

14. There is little or no data collection as to the number of cases in private and public law which involve domestic abuse and the decision is taken in spite of the requirements for recording decisions in Practice Direction 12J . T hose with anecdotal knowledge are often criticised for not being able to produce the data . For this reason, I propose that recordkeeping at each Court is essential . All decisions made in cases where PD 12J is engaged must be subject to ongoing recordkeeping with reasons for decisions being taken recorded fully by the Judge . It is not enough for the record to only note ‘PD12J was not considered to be relevant ’.

15. Each Court shall appoint a Court recorder to collate this information which w ould then be reported to the DA Commissioner. It is not proposed that there should be any fetter on judicial discretion, but all frontline workers working with domestic abuse will tell this Commission that application of PD 12J is a postcode lottery . This is also identified by the APPG report on domestic abuse 2017 to 2018.

16. This should also be inserted into the DA Bill by way of an amendment with a reporting officer recording:

m. which party raised domestic abuse as an issue,

ii. what the basis is for saying that Practice Direction 12J is engaged,

iii. how this impacts on the victim or child,

iv. how the risk assessment was undertaken and by whom,

v. wh e ther any issue has been raised within the Court proceedings to suggest that the perpetrator is using the process be family justice proceedings themselves as a means of furthering the abuse.

vi. Reason s for or against separate presentation for the child

vii. any decision taken either to hear or to dispense with the need for a fact-finding hearing.

viii. If contact is to be ordered on an interim basis then a full record of judicial reasons for that decision must be recorded stating, why it is believed that any risk to the children/other parent can be managed . The welfare checklist must also be considered . An order should only be made if there is a way to secure both child and the victim payment from harm.

ix. If the judge determines that contact for the perpetrator can be safely managed, then those reasons should be recorded as well.

x. It is essential that both parents can be said to clearly understand the impact of the abuse on both the child and the victim and the reasons given for making all these decisions recorded

xi. The Court should appoint a nominated DA J udge to oversee this process and to ensure it is complied with and the collated information should be forwarded to the Domestic Abuse Commissioner so that national standards and a national picture of how well Practice Direction 12J is being implemented will emerge .

xii. The Advisory committee to the Da Commissioner must include a family law practitioner

17. For the purposes of the assessment ISVAs and IDVAs will report to the Court in a similar way as CAFCASS currently do now to advise and assist informed decision making about the impact of the abuse on the vulnerability or alternatively the robustness of the victim and how that might impact on her being able to give evidence and what special measures may be needed to assist her.

This will obviate the ned for an expensive rolling programme of training for all other professionals involved in the FJC and CJC and recognises that ISVAs and IDVAs have the necessary training in working with vulnerable victims of abuse and are obviously therefore best placed to be able to make the most informed assessment.

Special Measures

18. The Bill must be amended to include provision for vulnerable witnesses to have access to whatever special measures they require to meet their degree of vulnerability and to assist them to give their evidence appropriately and effectively . Unfortunately , as a result of the cuts to the court estate, special measures facilities and most cuts have been cut to non-existent, so provision and funding must be made for these to be re-established at each court centre. in the absence of this, Article 6 rights are not observed.

19. The Bill should include a provision allowing for the victim to be excused attendance providing she is represented by a solicitor or a litigation friend and she is available by telephone to answer questions if need arises . This reduce s the ability of perpetrators to further the abuse of the victim in court .

Extending the Bill to Scotland and Northern Ireland

20. This is vital as no one should be left behind by this Bill .

Additional Funding

21. We have seen the resources and specialist services savagely reduced as a result of austerity measures and cuts to every area of the sector. We have seen refuge closes and women s aid are reporting 65% of referrals are having to be turned away . This is completely unacceptable and funding must be ring-fenced . It is unclear why the report states at page 21 "PCCs are well placed to understand the needs of victims in their area and to subsequently commission services to meet those needs". The majority of PCCs are not experts in domestic abuse and therefore this should be tempered .

Amendments essential to specific provisions of the bill

Definition of Abuse

23. Here as with many other sections of the Bill there is no reference made to harmful practices and these should be stated explicitly in the legal definition and include these are abuse on disposal of spouses , 21C slavery, visa abuse .

24. Refusal of the religious divorce should also be within the definition of abuse with the requirement that no Decree Absolute should be granted without first the religious mechanisms being satisfied. This prevents coercive control of the victim by enforcement to remain in a "limping marriage "

25. In terms of Part 1, Section 2 of the Bill the definition of "personally connected " should explicitly include members of the extended family households . Many BME are migrant women are abused by extended members of the household namely their in-laws .

Domestic Abuse Education in Schools

26. This piece at page 8 of the report on transforming the response to domestic abuse but needs amendment to e nsure that this there is no faith school or parental veto .

Support for Those with no Recourse to Public Funds

27. A mendments requested by Southall Black Sisters must be included.

Destitute domestic violence concession must be made available to women on all visas not just spouse visas . Increasingly, incoming spouses are entering on student, fiancée or visitors’ visas obtained by their applying in laws because of growing awareness of DDVC support . It is unacceptable that this narrow scope is retained. Southall Black Sisters have provided a body of evidence to the Home Office and the MOJ on this issue and in the need to extend the DDVC concession from 3 to 6 months . It is un tenable that the consultation report states at paragraph 25 that the Home Office concluded that this would "make very little difference " and that "the vast majority of applications for indefinite leave to remain made on the basis of suffering domestic abuse are resolved quickly and well within three month s. Southall Black Sisters have provided a significant body of evidenc e demonstrating that this is not t rue .

28. W orrying and offensive is the comment made at Part 25 stat ing that migrant women "in some cases, ( the victim ) of DA may best be served by returning to their country of origin, where it is available, to the support of their family and friends." T his ignores the body of evidence about risks to migrant women from many communities on returning to their country of origin after a failed marriage.

29. Proposals for an integrated approach to working with perpetrators is welcomed . The research of Professor Liz Kelly has shown that some benefits of perpetrator programmes but cautions that they are not effective in isolation and must be a part of a wider monitored multiagency approach.

Supporting Victims with Specific or Complex Needs

30. As the report to the Bill rightly says domestic abuse is not a "one size fits all" but without significant reinvestment in the secto r, essential specialist services have been lost . LGBT and BME services must be properly funded and a consultation should be undertaken as to the figures required but they will be significant . Similarly, services for female offenders, services for victims of abuse with disabilities, drug and alcohol problems must also be specialist and properly funded.

Online Abuse

31. With the surge and availability of inexpensive spyware, tracking devices and so on, this is an area of abuse that has yet to be fully explored and is worthy of an additional piece of research promoted by the Government itself. As a practitioner working with some of the most vulnerable BME and migrant women 21 st Century slavery is depressingly common as a feature of abuse of women not being allowed out of the house, not allowed access to money, bank account, even a key to the door and the ability to install CCTV cameras which could be monitored by the perpetrator’s phone is also a very significant and sinister form of control.

32. An amendment to the Bill must be made to ensure any orders made allow for the homes and electrical goods of victims to be swept for spyware or tracking devices. P age 44 states that a White Paper is anticipated later this year on online harm . This must be expedited.

Criminal Justice System

33. One of the significant problems as noted in the shadow report to the CEDAW Enquiry, 2019 is that the police are unable to meet the demands of the public for due to the savage cuts to the police estate . There is no point in giving police additional powers in relation to DA protection notices or orders when they are unable to utilise the protective powers that they currently have . T he Bill that is more aspirational than achievable . It is also difficult to see what additional police powers would add to the already available injunctive relief under the Family Law Act . Successive consultation responses from stakeholders have advised the Government over many years that victims just want to see the abuse stopped rather than criminalise the father of their children because liberty may be essential for financial support to care for the children . The emphasis on a criminal response is not what experts in the sector have been advocating for.

The Family Justice System

34. The funding of "Finding Legal Options for Women Survivors (FLOWS)" is welcomed .

35. P age 66 of the report records "we did not ask any specific questions in consultation about reforms to the family justice system" but it is clear from this document and also from submissions I have seen on behalf of many experts in the women sector that change is long overdue , as is an enquiry into the management of DA in the family court process.

Legal Aid

36. As a member of the Ministry of Justice working party on Legal Aid to victims of domestic abuse, I can confirm that some advances have been made but we have a long way to go yet and the regulations are far from perfect . Brexit and frequent changes of Lord Chancellors bringing in their own teams have made this working group extremely slow and disjointed . It is hoped that it can be accelerated .

37. Many are disqualified from receiving specialist legal help through MEANS testing and an urgent overhaul of MEANS testing is essential . The Law Society in their report "Priced Out of Justice" out in 2018 highlighted the fact that the minimum level of income threshold in which Legal Aid is refused does not even reach the minimum income standard calculated annually as the minimum upon which families can survive .

38. Wher e an applicant has an interest in the equity in a property bu t she has no means of accessing it , she can be outside the scope of Legal Aid in terms of capital. This must be abolished forthwith.

Domestic Abuse Commissioner

39. This independent commissioner role is warmly welcomed although page 78 there is no mention of family justice providers . In terms of what is happening on a day-to-day basis in the Family Court s, it is essential that the Commissioner’s advisory group should include either specially ac credited member of a Resolution or family practitioner accredited by the Law Society .

40. At Section 6 o f the Bill under the general functions of the Commissioner , as well as having the function of overseeing detection investigation and prosecution of criminal offences, the workings of PD 12J within the Family Court.

41. Section 7 reporting requirements requires the Commissioner to publish reports made under this and other sections but allows the Secretary of State to veto the report at the draft stage. I am concerned that this threatens the independence of the Domestic Abuse Commissioner.

42. Section 10 concerning the advisory board should include subsection 4(a) persons appearing to the Commissioner should have expertise in family law and implementation.

43. Section 16 of the Bill states that the DA Commissioner may not exercise any fault in relation to an individual case: this should be withdrawn or amended to include cases where there is significant public interest .

Data

44. Collation of information in the courts, both criminal and Family Court s is essential and this should be set into the office of the DA Commissioner .

45. The suggestion for public availability of Domestic Homicide Reviews is also welcomed . Practice Direction 12J was overhauled and updated following women’s aid research of homicide reviews and titled 19 homicides . Again, where improvement seems to be completely fettered is because of an inability to identify and risk assess the impact of abuse on victims and children within the family justice system.

Protection for Victims and Witnesses in Court : Par t 4

46. The provisions of Part 4B: Prohibition on cross-examination of a victim by perpetrator are warmly welcomed however the scope of Subsection 31R is way too limited. Rather than give judicial discretion outlined at Section 31T, the grounds for prevention of cross-examination should not be limited to where a perpetrator has an unspent caution conviction or the victim has a non-molestation order . This section of the Bill is reminiscent of the first draft of LASPO requirements for DA threshold proof for Legal Aid. It has taken six years for LASPO scope to be extended appropriately, we have an opportunity in the Bill consultation process to ensure that this is widened in a timely fashion so that in case s where DA is raised, the perpetrator must , should not be allowed to put to cross-examine complainant .

47. The proposal in the 20.2.20 Government response that in order to avoid cross examination the victim must provide evidence of DA in line with the LA regulations is missing the point completely. Although some small positive changes have been achieved, the regulations still do not reflect the reality of the lives of victims fleeing DA with, or without children. IN this as in other proposals, it should be the IDVA’s advice and recommendation that is followed to prevent cross examination or otherwise.

48. With an appropriately conducted risk assessment, the issue of cross-examination can be dealt with by the assessing expert and the Court so advised about their cross-examination by the perpetrator would cause significant distress or not be contrary to the interests of justice or affect the quality of the evidence given . It is likely that in all cases where there has been a poor relationship involving some form of domestic abuse that cross-examination should never take place by the person of the perpetrator.

49. Section 31b alternative cross-examination and payment for the same – if the genuine intention of this Bill is to protect victims of abuse and their children from further abuse including abuse throughout the Court process then funding should be provided for the appointment of an appropriately qualified legal representative to both question the perpetrator (in the event that the victim is also a litigant in person) and to prevent cross-examination of the victim by the perpetrator . It is difficult to see how under any circumstances this would not be abusive. The Bill should be amended to specify which fund this funding shall come from.

Special Measures

50. At Chapter 51 this is discussed and special measures should be available to all victims including where findings have not yet been made at least up to the point when a fact-finding hearing has taken place. The Govt response that this should not be an amendment to the DA bill, but should be part of Guidance on Practice Directions is disappointing to say the least. The Cuts to the court estate have n o t resulted in a smaller but improved system, they have produced a much diminished system where cash strapped courts find themselves unable to afford to ensure that they are equipped to accommodate Vulnerable witnesses. We are all too aware that Guidance and PDs are often over looked where money is the scarcest resource. Only by including this in the proposed statute will this be addressed properly.

51. The United Nations CEDAW Commissioners have expressed their concern about the severe underfunding of protections for victims of violence and child victims of the crossfire . The FJC and all constituent parts of it are so cash-strapped at this stage to make the introduction of any of this Bill without significant cash investment meaningless and unworkable. If this is a once-in-a-lifetime opportunity, then funds must be made available to make it a reality . When domestic abuse is costing UK economy £66 billion per year the tiny amounts of funding mentioned in this Bill will not make any minor improvements far less significant one.

25 May 2020

 

Prepared 11th June 2020