The Domestic Abuse Act 2021: An Introduction

Many of you reading this will have undoubtedly read the news about the Domestic Abuse bill being signed into government. It has been touted by many of its champions to introduce sweeping changes to the way the Family Court will be empowered to address issues of domestic abuse. This is particularly relevant in so far as that, although the figure is by no means firm, it is thought that at least 40% of private law children cases now involve allegations of domestic abuse therefore, it is essential that the family law practitioner takes note of these new changes. This article will address our top three takeaways from this legislation.

Domestic Abuse Protection Orders

The Domestic Abuse Act 2021 has introduced a new order that can be made at the Family Court upon application known as a ‘Domestic Abuse Protection Order.’ In effect, it functions as an injunction in a similar way to a non-molestation order in that it can be used to either prohibit a person from doing something as specified in the order but can also impose a mandatory requirement on the person as well. In addition, they can be made without notice to the respondent.

They contrast non-molestation orders in the sense that they can cross over into both the criminal and family jurisdiction with the police being granted powers to issue a notice and make an application for a DAPO on behalf of the victim of domestic abuse. Furthermore, the police have the power to arrest someone who they have reasonable grounds to believe there is a breach and they do not require a warrant. A breach of a DAPO carries a stiff sentence with a maximum of five years imprisonment on indictment.

The government have been keen to develop an injunction which carries some serious teeth and is a remedy that can be utilised by both the police in the criminal jurisdiction as a successor to the DVPO scheme as well as being a remedy that can be sought by the family practitioner.

It will be very interesting to see how this changes the scope of family law across the board. The Court of Appeal in Re HN (2021) noted that in the year of 2019/2020, the Family Courts had received a total of 29,285 applications under the Family Law Act 1996 for injunctive relief from domestic abuse so it remains to be seen whether the practitioner will resort to the DAPO approach for their clients.

Section 91(14) of the Children Act 198

Section 67 of the Domestic Abuse Act 2021 has now further developed the power the Court has in relation to Section 91(14). As practitioners, we have been used to the Courts only reserving this power against applicants who are persisting in repeated applications which have no merit and the Judge putting their foot down, acting as a sort of ‘gatekeeper’ in the Family Court before any application takes off. With the amendment of Section 67, the Court is able to use the provision of Section 91(14) more readily when it is satisfied that a Children Act application would put a child or another individual at risk of harm. What this means for the practitioner is that the Court doesn’t need a long history of previous applications to be satisfied to deploy Section 91(14). Thus, it can be used to help protect the victim of domestic abuse from the inevitable anxiety and ordeal of thinking about court proceedings over their head when realistically there has not been much of a change in the circumstances of the parties.

Perpetrators cross examining victims

As professionals we’ve all seen the discourse in the papers surrounding court proceedings and the distress it causes victims to be subjected to the ordeal of cross-examination. With criminal law, the conversation usually revolves around complainants of rape having their personal lives dissected one question at a time right down to the clothes they were wearing. With family law, it’s the abusive ex-partners who subtly send a feeling of fear and terror across the court room to their victims in the witness box. The discourse in society is not wrong and sadly, it’s far more real than sensational.

Under s.65 of the Domestic Abuse Act 2021, the legislation has added several new provisions to the Matrimonial and Family Proceedings Act 1984 with regard to the prohibition of cross-examination in person in family proceedings. In terms of provisions, they may come across as familiar to some practitioners as they have been policies which have long been mooted by law makers before the Act came to force. The section is somewhat long as it adds a number of new provisions to the MFPA 1984 but in summary, they are:

• A party who has either been convicted, cautioned or charged with a specified offence is forbidden from cross-examining a person who is the victim or alleged victim of that offence. The provision acts both ways in the sense that it also forbids the victim from cross-examining the perpetrator or alleged perpetrator of that specified offence.

• No party who is subjected to a protective injunction can cross-examine a witness who is protected by that injunction.

• Where evidence is adduced in family proceedings that determines a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party may not cross-examine the witness. The provision again acts both ways in the sense that it can forbid a party who is a victim of domestic abuse from cross-examining the alleged perpetrator if they are a witness to proceedings.

• There is a catch all provision which allows the Judge to prohibit a party from cross examining a witness if it is a case that the criteria listed in the above paragraphs is not satisfied but it is clear to the Court that it appears the quality of evidence would be diminished or the witness may be significantly distressed and it would be contrary to the interests of justice if the Court does not give that direction.

Conclusion

It is hoped that with this Act now in force, it is not the end of a chapter in getting a sense of justice for victims of domestic abuse but rather the beginning of a new chapter in the Family Courts in how it addresses domestic abuse. The reason why so many victims don’t take their complaints any further in proceedings ultimately boils down to fear. The fear they have that their abusive partners will exact some form of retaliation or revenge. It is a fear which can grip even the most confident and assured clients we encounter as family practitioners. What can be taken from this Act with regard to the issue of domestic abuse is that society, as a whole, is alive to this issue, it is passionate about this issue and it is keen to settle this issue by restoring trust in a system which many victims had in the past given up on. Only time will tell as to how this chapter will unfold.

Written by Amjad Kadhim, Pupil Barrister