The Domestic Abuse Act 2021 – fanciful legislation or material change?

Gemma Duffy, Trainee in her family law seat discusses the changes to domestic abuse legislation and how that will impact families going through court.

The implications for Family Law

Our family law team are, unfortunately, well accustomed to having to represent vulnerable clients who confide in us about very sensitive circumstances. Often it arises from the outset that clients, adults and children alike, will have suffered some form of domestic abuse within their family environment.

Our family law team recognise the end goal outside of a matter concluding satisfactorily is ensuring that clients feel safe and able to permanently leave a dangerous situation without fear of repercussions from the perpetrator. Whilst domestic abuse is not a new concept it does appear that gaps in legislation have meant that too often legal practitioners are not equipped with the statutory tools to ensure that domestic abuse and its consequences are addressed effectively.

The Domestic Abuse Act 2021 received its Royal Assent on 29^th April 2021. The aim of the act is twofold. Firstly, to create and increase awareness of the concept of domestic abuse and secondly, to provide additional protection to victims of domestic violence. Notably, the Act goes beyond criminal justice reforms, to also cover the family courts, housing, and health.

Though numerous provisions came into force on the day the Act was passed, as of 1^st October 2021 a further set of provisions have come into force, and which are of particular significance in Family Law proceedings. These include some key definitions of what counts as domestic abuse, how the parties must be related or know each other, special measures for victims of domestic abuse in family proceedings, local authority support, and prohibiting expenses for medical evidence.

What is Domestic Abuse?

The Act states the definition of domestic abuse to be composed of three parts:-

• The perpetrator and victim are both aged 16 or over;
• The behaviour is abusive; and
• They have a relationship that makes them ‘personally connected’.

What is Abusive Behaviour?

Abusive behaviour consists of any of the following:

• Physical or sexual abuse– this may include where one person carries out physical or sexual acts without consent.
• Violent or threatening behaviour– the perpetrator does not necessarily have to carry out the behaviour, but it is still abuse if it is threatening.
• Economic abuse– the Act explains that this means any behaviour that adversely affects the victim’s ability to ‘acquire, use or maintain money or other property’ or ‘obtain goods or services’.
• Psychological, emotional or other abuse– abuse may be verbal and designed to impact the victim psychologically and emotionally.
• Controlling or coercive behaviour– the Explanatory Notes of the Domestic Abuse Act explain that:
  • Controlling behaviour is ‘a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.
  • Coercive behaviour is ‘a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim’.

The case F v M[2021] explains the difficulty of understanding this type of behaviour, and how it is preferable for the Court to isolate incidents and then look at them in context to understand their greater significance.

One barrister with whom our department work regularly, Clare Ciborowska, has recently consulted and assisted the BBC with an educational documentary about coercive control which helps explain and consider this more fully. Information about this can be found here: Is this coercive control? - BBC Teach

It is irrelevant whether any domestically abusive behaviour occurs as a single incident or a course of conduct. The behaviour may still be towards the victim even if the conduct is directed at someone else, for example, the victim’s child.

What does a ‘personally connected’ relationship between the victim and perpetrator encompass?

The Domestic Abuse Act sets out that the victim and perpetrator must be ‘personally connected’. This is another way of saying that they must have one of the following types of relationship with each other:

• They are, or have been, married to each other;
• They are, or have been, civil partners of each other;
• They have agreed to marry one another (even if this is no longer the case);
• They have entered into a civil partnership agreement (even if this is no longer the case);
• They are, or have been, in an intimate personal relationship with each other;
• They each have, or there has been a time when they each have had, a parental relationship in relation to the same child; or
• They are relatives

It should be noted that the Act also makes provision to recognise children as victims in their own right of domestic abuse as opposed to just witnesses.

Special Measures introduced for Victims of Domestic Abuse in Family Proceedings

The Domestic Abuse Act recognises that being a party to proceedings involving domestic abuse can be difficult for the victim. The Act, therefore, introduces an assumption that the quality of a person’s evidence and their participation in the proceedings are likely to be diminished by reason of vulnerability. This applies when the person is a party or witness in family proceedings and is, or is at risk of being, a victim of domestic abuse.

This is applicable if the person is, or is at risk of being, a victim of domestic abuse by:

• A party to the proceedings;
• A relative of a party to the proceedings; or
• A witness in the proceedings.

As a victim of domestic abuse, the victim will be automatically eligible for access to special measures. The type of measures that may be used can be found in the Family Procedure Rules, for example:

• Preventing a party/witness from seeing another party or witness;
• Allowing a party/witness to participate in hearings and give evidence by live link;
• Providing for a party or witness to participate in proceedings with the assistance of an intermediary; and
• Providing for a party or witness to be questioned in court with the assistance of an intermediary.

Notably, the Act also prevents a perpetrator from cross-examining a victim in Court.

Local Authority Support

The Act obliges local authorities to support victims of domestic abuse by making it necessary that they:

• Assess, or makes arrangements to assess, the need for accommodation-based support;
• Prepare and publish a strategy to do so; and
• Monitor the effectiveness of the strategy.

Accommodation-based support means support for victims of domestic abuse and their children in relevant accommodation.

Additional financial support for domestic abuse victims is now available through a government support trial scheme.

Prohibition on charging for the Provision of Medical Evidence

Finally, the Domestic Abuse Act states that health professionals cannot charge a fee for the preparation or provision of evidence when it is evidence that the individual is, or is at risk of being, a victim of domestic abuse, and the evidence supports the individual’s application for legal services.

Below are the other key changes the Domestic Abuse Act 2021 will deliver:

• A Domestic Abuse Commissioner to stand up for survivors and life-saving domestic abuse services;
• 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 of housing, and will keep a secure tenancy in social housing if they need to escape an abuser;
• A duty of 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.

Although it remains to be seen whether the Act could be a turning point in addressing domestic abuse, it appears to tackle the right issues and plug holes in the problems associated with confronting domestic abuse. Within the sphere of Family Law at least, we are just at the beginning of putting the Act’s principles into practice.

Our family law team at GoodLaw Solicitors LLP are committed to ensuring that people who have experienced domestic abuse are supported, empathised with and reassured throughout their case and we have specialists who practice in this area daily. If you or members of your family require advice and support with domestic abuse, please do not hesitate to contact our team at family@goodlawsolicitors.co.uk.