Last week was a bumper week for new family law legislation. First we had the introduction of the Divorce, Dissolution and Separation Bill on Thursday, and that was quickly followed on Friday by the publication of the report of the Parliamentary Joint Committee (of MPs and Members of the Lords) on the Government’s draft Domestic Abuse Bill.
Before I look at the report, a little background, for the benefit of those who have not been following. In February 2017 the Prime Minister announced plans for work “to transform the way we think about and tackle domestic abuse, leading to the introduction of a new Domestic Abuse Bill.” In March 2018 the Government launched a consultation to seek views on how this transformation could be achieved, and in January this year the Government published its response to the consultation, including a draft Bill. In the following month the Joint Committee was appointed to conduct ‘pre-legislative scrutiny’ of the draft Bill.
The draft Bill contains a number of provisions, including the first statutory definition of domestic abuse, and the establishment of a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”. For further details of what the Bill contains, see this post.
OK, so what does the report recommend? Well, it covers a lot of ground, running to over a hundred pages, so I can only give brief details here. In summary, the Committee say that whilst it welcomed the proposed measures in the Bill, it was concerned with ensuring their effectiveness in practice. Their recommended changes to the Bill “are to ensure that all those affected by domestic abuse receive protection and a tailored response to their differing needs.”
As to the specifics, the recommendations included:
- Children – The Committee is concerned over the absence from the definition of domestic abuse of children as victims of abuse perpetrated by adults upon adults. They recommend that the Bill be amended so the status of children as victims of domestic abuse that occurs in their household is recognised
- Gendered nature – The Committee believe it is crucial that the gendered context of domestic abuse is recognised on the face of the Bill, and recommend the Government introduce a new clause into the draft Domestic Abuse Bill in the following, or very similar, terms: “When applying Section 1 and 2 of this Act [which contain the definition of domestic abuse] public authorities providing services must have regard to the gendered-nature of abuse and the intersectionality of other protected characteristics of service users in the provision of services, as required under existing equalities legislation.” Note that a gendered definition of abuse does not exclude men.
- Courts – “the Committee strongly supported the proposal to require the provision of special measures such as video links and separate waiting rooms to protect witnesses in criminal proceedings from coming into contact with their abusers, but recommended that these measures should be extended to family and other civil courts.”
- Cross-examination – The Committee called for a mandatory ban upon cross-examination of survivors of abuse by the perpetrators in the course of family and other civil proceedings. As I reported in my post about it the Bill does cover this, but the Committee is concerned at the potential for inconsistency in application, because too many victims of domestic abuse will be protected only at the discretion of the court. They therefore recommend that the mandatory ban is extended so that it applies where there are other forms of evidence of domestic abuse, as in the legal aid regime threshold for obtaining legal aid in domestic abuse cases.
- Domestic Abuse Prevention Orders – The Committee was concerned about the potential for inconsistent application between civil and criminal courts, and that the courts would be reluctant to impose the orders in all but the most exceptional of circumstances. The Committee therefore recommends that the Government carry out a thorough review of the protective measures currently available before going ahead with its proposals for the Domestic Abuse Protection Order. Following that review, the Committee anticipates that the Government will amend the current scheme, “both to tackle the flaws seen in the Domestic Violence Protection Order process and to ensure that the courts are not obliged to take a restrictive approach to imposing the new order.”
- Bail – Lastly, “The Committee called on the Government to urgently bring forward legislation to increase the length of time suspects can be released on pre-charge bail in domestic abuse cases, and to create a presumption that suspects under investigation for domestic abuse, sexual assault or other significant safeguarding issues only be released from police custody on bail, unless it is clearly not necessary for the protection of the victim.”
You can read the Joint Committee report here (PDF – an HTML version is here). The draft Bill can be found at Annex D of the Government’s response to the domestic abuse consultation, which you can find here.