In the year ending March 2019, an estimated 2.4 million adults aged 16 to 74 years experienced domestic abuse in the last year (1.6 million women and 786,000 men). The government was elected with a manifesto commitment to pass the Domestic Abuse Bill, which passed the House of Commons in July 2020, and is set to become law once it has passed through the House of Lords.
The Bill contains a number of wide-ranging provisions to better protect victims of domestic abuse and is expected to have a significant impact on the family courts.
The Bill will prohibit perpetrators of abuse from cross examining their victims in person and will also introduce a statutory presumption that victims of abuse are eligible for special measures. It creates a statutory definition of domestic abuse, emphasising that domestic abuse is not just physical violence, but can also be emotional, coercive or controlling, and includes economic abuse.
In family proceedings, the Bill will introduce an automatic ban on cross-examination in person where one party has been convicted of, given a caution for, or charged with certain offences against the witness (or vice versa). The provisions will also introduce an automatic ban on cross examination in person where an on-notice protective injunction is in place between the party and witness, or when there is other evidence of domestic abuse (broadly mirroring the criteria in the Legal Aid regime).
At the moment, it is in the court’s discretion to impose such a ban, and while sometimes the Judge will ask questions on behalf of a party, this is widely seen as an imperfect solution. The Bill will give the court the power to appoint a legal representative to conduct cross-examination on behalf of a party who is prohibited from cross-examining the witness in person. This is similar to a practice already in place in the criminal courts. The court-appointed legal representative will be paid from central funds and will be appointed if the court decides that it is necessary in the interests of justice to do so.
The family courts are also under a duty to consider whether a person’s participation in the proceedings or ability to give evidence is likely to be diminished by reason of ‘vulnerability’ and, if so, whether it is necessary to make one or more participation directions (“special measures”) to assist them (Part 3A of the Family Procedure Rules 2010, supported by Practice Direction 3AA). There is no definition of ‘vulnerability’ though the court must consider various matters such as their age, their mental capacity, or whether they have any disabilities.
The Bill provides that victims of domestic abuse will be automatically eligible for special measures because the court will assume their ability to participate or give evidence will be diminished without them. The court will then only need to decide which (if any) of the available measures are necessary in the particular circumstances.