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Landmark Day for Domestic Abuse Survivors

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:

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:

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:

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:

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 family@alettashaw.co.uk