Domestic Abuse Bill

Written evidence submitted by Resolution (DAB23)

Domestic Abuse Bill 2019-21

Resolution is the leading family law body in England and Wales, representing 6,500 family justice professionals.

We campaign for better laws and better support and facilities for families and children undergoing family change.

Many of our members regularly act for applicants and/or respondents in Family Law Act injunction proceedings, in private law children cases involving proven or alleged domestic abuse and in related divorce finance matters.

Our evidence primarily relates to Part 5 of the Bill and protection for victims and witnesses in the family court, and how that can be improved.

Summary

1. Resolution considers that the Bill should be amended to make clear statutory provision for special measures in the family courts consistent with and on a par with those in the criminal courts, and to seek to ensure that where special measures are needed for vulnerable parties and witnesses they are provided.

2. Resolution recommends changes to the provisions on barring cross-examination in person in family proceedings to better ensure that no victim of domestic abuse is cross examined in person by the perpetrator (and vice versa) in such proceedings, and that their evidence is fairly tested.

3. At the time of writing we await the findings of the Ministry of Justice’s expert panel on how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. We will wish to carefully consider its recommendations and any implications for this Bill as soon as possible.

Special measures in the family court

4. In our members’ experience, victims are often reluctant to go to a contested hearing, even in the family courts, unless a considerable emphasis is placed on special measures. Necessary special measures include separate entrances and waiting areas; provision for a perpetrator to be barred from attending court with ‘supporters’ who also intimidate the victim, including family members; availability of video link for hearings where evidence is expected to be necessary, and then to be allowed to restrict the view between the parties; active consideration of the need for a victim to attend all hearings, unless giving evidence and provided represented by a solicitor and available by phone to give instructions. The coronavirus crisis has highlighted the challenges of and mixed experiences around the use of technology for and effectiveness of remote hearings.

5. Part 3A of the Family Procedure Rules ma de provision for vulnerable persons’ participation in proceedings and giving evidence further to the 2015 Final Report of the Vulnerable Witnesses and Children Working Group headed by Hayden J and Russell J. But in practice , and in our members’ experience, s pecial measures for children , domestic abuse victims and other vulnerable adults in family proceedings are s ubject to availability . If the court considers such measures are necessary, they should be provided, especially in the context of a reduced but intended improved court estate .

6. It is welcome that under the Bill victims of domestic abuse would be eligible for special measures when giving evidence in relation to proceedings in respect of a DAPO. However, the Bill fails to go far enough , failing to take the opportunity to clarify eligibility for special measures in family proceedings and to take a fully consistent approach across jurisdictions.

7. Resolution’s view is that , as a matter of principle, there is a need to have special measures as matter of course in all family cases which meet certain criteria , particularly where a party has a relevant conviction or caution , there has been a finding of fact of domestic abuse, or where there are live allegations of domestic abuse.

8. The Joint Committee on the draft Domestic Abuse Bill (the Joint Committee) recommended " that the provision for special measures in the family court’s rules and practice directions is put on a statutory basis, and that a single consistent approach is taken across all criminal and civil jurisdictions. This is particularly important given the Government’s plans for a reduced but improved court estate, which may provide an additional barrier to participation for vulnerable victims " .

9. Resolution supports the amendment proposed by Women’s Aid, Welsh Women’s Aid and Rights of Women to delete Clause 46 of the Bill and insert a new Part making clear statutory provision for special measures in the family and civil courts . We urge members of the Public Bill Committee to support that amendment .

Prohibition of cross-examination in person in family proceedings

10. For far too long there have been, and continue to be, parties (who may be unrepresented themselves) giving evidence in the family court and being cross-examined by their alleged or proven perpetrator. This can raise serious issues for the parties and the judge. The judge may prevent direct questioning, but the process is only longer and more difficult for all those involved in the absence of an advocate for the (alleged) perpetrator. The family courts make decisions which often have life-long consequences for the children involved and need the best evidence possible to provide a safe, lasting and satisfactory outcome for the child and to ensure justice is done to all parties.

11. Resolution continues to call for widening of the scope of private family legal aid . T he issue of perpetrators using the family justice procedure to abuse victims is much wider than cross examination, there are ancillary issues including repeat applications and dragging out the process . It can also be the case that a perpetrator is legally represented but the victim is not. Many survivors never report the abuse they have experienced, for example, sometimes only disclosing their experience for the first time when consulting a solicitor about a private family law matter. They can be ineligible for family legal aid but can be cross-examined by a perpetrator making a Children Act application to further their abuse.

12. L egal aid for representation of both victims and perpetrators [1] up to and including fact finding in private family cases, without the need for gateway evidence as currently prescribed, would in our view address the problem of perpetrators seeking to use the family court process to abuse their victims more effectively than the provisions in the Bill alone , as well as providing equality of arms . Legal representation can also guard against inconsistency in the court’s application of discretion to prevent cross examination.

13. Turning to Clause 59 of the Bill itself, it is encouraging that the Government has made changes to improve the proposed new Part 4B i n the Matrimonial and Family Proceedings Act 1984 further to the report of the Joint Committee . It would be helpful for committee members to seek confirmation that it is not intended to restrict the bar to only cross examination on issues of alleged abuse.

14. Resolution is of course committed to working collaboratively with the Ministry of Justice to ensure effective and workable implementation of the final Bill for all concerned. Particularly on the development of guidance on the detail and extent of the role of the appointed "qualified legal representative" in the family jurisdiction, training for that role, and supporting court rules, and on an economically viable fee scheme. We look forward to having sight of the proposed draft guidance as soon as possible.

15. However, there remain c oncerns around whether th is part of the B ill will protect all those who need protection.

16. The Bill provides for a bar on cross-examination in person by either p arty where there is an unspent conviction, caution or charge, or on-notice protective injunction in place. I t will also apply where there i s other "specified evidence " of domestic abuse perpetrated by a party to the proceedings towards a witness . This is intended to broadly reflect the evidence required to access private family legal aid. Aside from how th is will work in as timely, clear and simple a way as possible, t he r egulations controlling the gateway to private family legal aid are not full proof and still represent a barrier for some individuals seeking to remove themselves from an abusive relationship and finalise the legal consequences of the end of the rel a tionship . Some survivors may have simply not been able to face reporting the abuse to or been screened for abuse by any of the prescribed evidence providers . Our understanding is that the word of the applicant and/or the specialist family law solicitor routinely professionally screening for domestic abuse would not be accepted as evidence under the Bill , despite the fact that this would better meet the needs of victims with multiple problems who may simply not have access to any other form of evidence.

17. The current Bill is also unlikely to guard against inconsistency in judges’ application of the discretion to prevent in person cross-examination in certain circumstances.

18. A gain, Resolution supports the amendments being proposed by Women’s Aid, Welsh Women’s Aid and Rights of Women to :

a. simplify the provisions on prohibition of cross-examination in person to ensure, most importantly, that all victims of abuse are protected from the risk of continued abuse by cross-examination in person in family proceedings. It would also be fairer for all parties involved and save some hard-pressed judicial time; and

b. maintain the discretion to bar cross-examination in person of a witness where there has not been an allegation of domestic abuse but who is otherwise vulnerable, for example, a child witness where there are allegations of child abuse.

19. Resolution asks committee members to urge the Government to simplify and widen the scope of the automatic (non-discretionary) prohibition and support these amendments.


[1] Technically, l Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. Il egal aid for respondents remains in scope, subject to means and merits assessment, for civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. . But is extremely difficult to persuade the LAA that an (alleged) perpetrator meets the merits test . A respondent may present their own gateway evidence for a private family law legal aid application where there are cross allegations, which as for victims will be subject to means and merits assessment, or occasionally successfully apply for exceptional case funding.

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[1] 27 May 2020

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Prepared 11th June 2020