Written by Rachel Duke
30 July 2022 represented a historic day for the protection of victims of domestic abuse in that the long-awaited Domestic Abuse Act 2021 came into force.
The key changes are as follows:
- A legal definition of domestic abuse which recognises children as victims in their own right.
- A Domestic Abuse Commissioner to advocate for survivors and domestic abuse services.
- A legal duty on councils to fund support for survivors in ‘safe accommodation’.
- New protections in the family and civil courts for survivors, including a ban on perpetrators and alleged perpetrators from cross-examining their victims, and a guarantee that survivors can access special measures (including separate waiting rooms, entrances and exits and screens).
- New criminal offences – including post-separation coercive control, non-fatal strangulation, threats to disclose private sexual images.
- A ban on abusers using a defence of ‘rough sex’.
- A guarantee that all survivors will be in priority need for housing, and will keep a secure tenancy in social housing if they need to escape an abuser.
- A ban on GPs for charging for medical evidence of domestic abuse, including for legal aid.
- A duty on the government to issue a Code of Practice on how data is shared between the public services survivors report to (such as the police) and immigration enforcement.
Prohibition on cross-examination
In the Family Law context, the new prohibition on perpetrators and alleged perpetrators directly cross-examining their former partner is particularly significant. Such direct questioning serves to perpetuate the abuse and re-traumatise the survivor who has to re-live the trauma directly in response to questions from the perpetrator.
The prospect may understandably by so unthinkable for the survivor that (s)he decides that they cannot give evidence and so the allegations are never tested by the court. This can result in survivors and children remaining at risk of serious harm.
This issue has become more significant since the cuts to legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which came into force in April 2013. Previously, alleged perpetrators who were financially eligible for legal aid could be legally represented and survivors were therefore cross-examined professionally by the perpetrator’s lawyer. Not by any means an easy task, but far preferable than being questioned directly by the perpetrator.
From today, if a perpetrator, or alleged perpetrator of domestic abuse is not legally represented in Family Proceedings, the court will appoint a qualified legal representative to undertake the cross-examination. The cost of this will be met from public funds.
The new law also covers survivors who will no longer potentially have to cross-examine the perpetrator, or alleged perpetrator directly themselves. This will be particularly important for survivors who are not financially eligible for legal aid. Again, if they cannot be legally represented (often for financial reasons) the court will appoint a qualified legal representative to undertake the cross-examination on his or her behalf.
The prohibition on cross-examination applies in the following scenarios:
- The perpetrator has been convicted or cautioned for a relevant offence; or
- When there is an on notice protective injunction between the parties in force; or
- Where there is other specified evidence of domestic abuse and the court is satisfied that domestic abuse has occurred; or
- If the above three criteria do not apply, but the court is satisfied that the quality of the evidence would be diminished if the cross-examination was by one of the parties in person; or the quality of the evidence would be improved if the cross-examination was not by one of the parties in person and the interests of justice point to the direction being made; or
- The cross-examination by a party in person is likely to cause significant distress to the witness and that the distress is likely to be more significant than the likely distress to the witness if the cross-examination was conducted by somebody else.
We are yet to see how these provisions will be implemented in practice, but they ought to make a significant difference for survivors who in the past would have to have endured questioning by their former abuser.
Definition of domestic abuse
The behaviour of a person (A) towards another person (B) when both parties are aged 16 or over and personally connected which is:
- physical or sexual abuse
- violent of threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse.
The abuse can be a single incident of a course of conduct.
Economic abuse means any behaviour that has a substantial adverse effect on B’s ability to:
- acquire, use or maintain money or other property, or
- obtain goods or services.
A’s behaviour may be behaviour “towards” B even if it consists of conduct directed at another person (for example, B’s child).
To receive advice on this or any other Family Law issue, please contact our Family Team on 020 8304 4884 or firstname.lastname@example.org