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The Tightening of Domestic Abuse Legislation

Domestic abuse has been in the news again.

A recent report released by the Fawcett Society, here, has found that violence against women and girls is ‘endemic’ in the UK. It considers that the legal system is failing women and needs fundamental reform. The report, which the Fawcett Society says is the first of its kind, calls for a number of specific changes to the legal system. These include extending the definition of coercive control to include after a couple have separated, making any breach of a domestic abuse order a criminal offence, making ‘up-skirting’ an offence, making misogyny a hate crime, strengthening the laws on sexual harassment at work to protect women from harassment by third parties, and extending protection from pregnancy discrimination to 6 months after maternity leave ends.

Not limiting its response to female victims only, the Government has already this year responded to the need for a culture change in response to domestic abuse. Since 8 January 2018 there is now no longer a time limit on abuse evidence being presented in private family law cases, and the range of documents accepted as evidence of abuse has been widened to include statements from domestic violence support organisations and housing support officers. Justice Minister Dominic Raab said: “We have listened to victims’ groups and carefully reviewed the criteria for legal aid for victims of domestic abuse in family cases. Today’s changes will ensure that vulnerable women and children get legal support, so their voice is properly heard in court”.

The Government has also committed to bringing forward a landmark Domestic Violence and Abuse Bill.  In the Queen’s Speech the Government committed to legislation “to protect the victims of domestic violence and abuse”. However, The Prime Minister has recently confirmed that the Home Office will first be issuing a consultation: “because we want to ensure that we listen to all those who have been affected so that we deal with all aspects of this particular issue”.

Under the proposals alleged victims would be entitled to special protections in court. Amber Rudd, the Home Secretary explained in The Times that the consultation will ask how we can improve our response in the home, in the community, in the courtroom, through to public services, accommodation for women fleeing their abuser as well as how we can strengthen our laws to stop perpetrators and when possible to rehabilitate them. We want to remove one of the barriers that victims encounter in court: coming face to face with their alleged abuser.

Furthermore, in criminal law the Sentencing Council (which is responsible for developing sentencing guidelines and monitoring their use) has issued new guidance to deal with offences involving domestic abuse, here, which will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.  These guidelines make it clear that an offence which takes place in a domestic context will be viewed more seriously and will therefore be likely to result in a tougher sentence. The guidelines explain: “The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety and in the worst cases a threat to their life or the lives of others around them”. The guidelines will also extend domestic abuse to include non-physical forms, such as threats on social media.

The guidelines set out a list of aggravating factors to be taken into account. These include such things as steps taken by the alleged perpetrator to prevent the alleged victim reporting an incident, forcing the victim to leave home, the impact of the abuse on any children, using contact arrangements with a child to instigate an offence, and a history of disobedience to court orders, including non-molestation and occupation orders made by the family courts. The crossover between criminal and family law is clear.  It is hoped that these tougher guidelines will eventually have a positive bearing on behaviour during the processing of family cases. These principles will also apply to matters in a family court, when dealing with an application for a non-molestation or occupation order, for example.

The very recent case here has indicated the issues that the Government still needs to grapple with. This case concerned a father who was seeking a Child Arrangements Order in relation to his children and a mother making very serious allegations of domestic abuse against the father. The father did not have legal representation but instead relied upon a McKenzie Friend who could assist him but who didn’t have rights of audience to speak in court. Rather than interview his former spouse and the child himself, it was proposed that the father’s McKenzie friend could conduct the questioning instead. In the Court of Appeal, Lord Justice McFarlane agreed that affording advocacy rights to the father’s McKenzie Friend, to interview the mother and potentially the child, “was not … a tenable solution and was rightly rejected by the judge” at the court of first instance. Such an application, he said, should rarely if ever be granted. The Government is yet to define how to reflect the adjustments that have already been made to the criminal justice system in the family court whereby alleged perpetrators are not allowed to interview their alleged victims in court, albeit this is something the President of the Family Division has been actively considering now for some time.

At Cambridge Family Law Practice we have experience in dealing with issues of domestic violence and in the application of new points of law as and when then come into effect. We look forward to the new changes in legislation and fully support these new Government initiatives. If you have a question about domestic violence or any other family law issue, you can call us on 01223 443333 and make an appointment to speak to Adam, Simon, Tricia, Sue or Gail.