Legal Skills – Domestic Abuse Act 2021

At Stowe Family Law we have firm-wide training on domestic abuse, we thought it might be helpful to share with you a summary of the key points to note in respect of the Domestic Abuse Act, and an update on which parts of the Act are currently in force and which have yet to be fully implemented.

First, a brief summary of the 7 Parts of the Act:

Part 1 – provides a statutory definition of domestic abuse. This is now in force.

Part 2 – creates the office of Domestic Abuse Commissioner and sets out the functions and powers of the Commissioner. This is now in force.

Part 3 – provides for a new civil preventative order regime – the Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO). This is not yet in force, and it is not clear when it will be, but it is likely to be sometime in early 2023. It will be piloted in certain areas before coming fully into force.

Part 4 – places new duties on local authorities in England in respect of the provision of accommodation-based support to victims and their children in refuges and other safe accommodation. This is now in force.

Part 5 – confers on victims of domestic abuse automatic eligibility for special measures in the criminal, family, and civil courts; prohibits perpetrators of certain offences from cross examining their victims in person; gives family and civil courts the power to appoint a legal representative to conduct the cross examination on behalf of the prohibited person and lowers the statutory threshold for the deployment of a barring order under section 91(14) of the Children Act 1989. This is now in force.

Part 6 – extends the offence of controlling or coercive behaviour in an intimate or family relationship to cover post separation abuse (this section (68) is not yet in force); extends the offence of disclosing private sexual photographs and films to cover threats to disclose; provides for a new offence of non-fatal strangulation or suffocation; makes clear that a victim cannot consent to the infliction of serious harm for the purposes of sexual gratification; and extends the extra territorial jurisdiction of the criminal courts in England and Wales, Scotland and Northern Ireland to further violent and sexual offences. Save for s. 68, this is in force.

Part 7 – makes miscellaneous and general provision, including giving eligible victims who are homeless priority need for accommodation secured by the local authority and prohibiting certain health professionals from charging for the preparation and provision of medical evidence of domestic abuse. This is mostly in force save for ss. 77, 82 and 84.

Next, a more in-depth look at Parts 1, 3 and 5, which seem to be the parts we are likely to encounter most in practice.

Definition of domestic abuse – Part 1

For the purposes of DAA 2021, the behaviour of a person towards another is domestic abuse if:

• Both parties are each aged 16 or over and are personally connected to each other, and
• The behaviour is abusive.

Behaviour is abusive if it consists of any of the following:

• Physical or sexual abuse
• Violent or threatening behaviour
• Controlling or coercive behaviour
• Economic abuse, which means any behaviour that has a substantial adverse effect on that person’s ability to acquire, use or maintain money or other property, or obtain goods or services
• Psychological, emotional, or other abuse.

The behaviour can consist of a single incident or a course of conduct.

For the purposes of DAA 2021, behaviour may be behaviour towards a person despite the fact that it consists of conduct directed at another person, for example, a comment towards that person’s child. This confers the formal status of victim of domestic abuse not only on the victim themselves but on any child who has seen, heard or experienced the effects of domestic abuse.

Definition of personally connected

For the purposes of the Act, two people are personally connected to each other if any of the following apply:

• 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, whether or not the agreement has been terminated, they have entered into a civil partnership agreement, whether or not the agreement has been terminated, 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
• They are relatives, as defined in the Family Law Act 1996.

Domestic Abuse Protection Notices (DAPN) and Domestic Abuse Protection Orders (DAPO) – Part 3

The intention behind DAPNs and DAPOs is to bring together the strongest elements of existing protection orders into a single comprehensive order which it is hoped will provide more effective and longer-term protection to victims. The aim is that DAPOs will become the ‘go to’ order in cases of domestic abuse. The DAA 2021 repeals the existing Domestic Violence Protection Orders. Other protective orders, such as non-molestation orders, will remain in place so that they can continue to be used in cases which are not domestic abuse related.

A DAPN, like the current Domestic Violence Protection Notice, will give victims immediate protection following an incident. A DAPN would be issued by the police and could, for example, require a perpetrator to leave the victim’s home for up to 48 hours.

Victims, specified third parties, and the police will be able to make an application for a DAPO to the magistrates court or the family court. The family court (along with the civil and criminal court) will be able to make a DAPO of their own volition during existing proceedings which do not have to be domestic abuse related.

DAPOs may impose both prohibitions and positive requirements on perpetrators. These could include prohibiting the perpetrator from coming within a specified distance of the victim’s home and/or any other specified premises, such as the victim’s workplace, alongside requiring the perpetrator to attend a behaviour change programme, an alcohol or substance misuse programme or a mental health assessment.

The requirements imposed by a DAPO may be varied by the courts so that they can respond to changes over time in the perpetrator’s behaviour and the level of risk they pose. Courts will have the express power to use electronic monitoring (‘tagging’) to monitor a perpetrator’s compliance with certain requirements imposed by a DAPO. All DAPOs will include notification requirements, which will require perpetrators to notify the police of their name and address and of any changes to this information. There will also be power for additional notification requirements to be specified in regulations, which courts may impose on a case-by-case basis as appropriate.

Breach of a DAPO will be a criminal offence, carrying a maximum penalty of up to five years’ imprisonment, or a fine, or both. It will be possible for a breach to be dealt with as a civil contempt of court, and the victim’s views will be considered together with other issues of public interest when deciding which sanction for breach is appropriate.

s. 32 sets out the conditions for making a DAPO against a person (who must be aged 18 or over) which are:

(2) Condition A is that the court is satisfied on the balance of probabilities that P has been abusive towards a person aged 16 or over to whom P is personally connected.

(3) Condition B is that the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

Before making an order, the court must consider the matters set out in s. 33, namely:

(a)the welfare of any person under the age of 18 whose interests the court considers relevant to the making of the order (whether or not that person and P are personally connected);

(b)any opinion of the person for whose protection the order would be made—

(i)which relates to the making of the order, and

(ii)of which the court is made aware;

(c)in a case where the order includes provision relating to premises lived in by the person for whose protection the order would be made, any opinion of a relevant occupant—

(i)which relates to the making of the order, and

(ii)of which the court is made aware.

However, it is not necessary for the person being protected by the order to consent to the making of the order (s. 33(3)).

The order may be made without notice, subject to the conditions set out in s 34 of the Act.

DAPNs and DAPOs are yet to be piloted in a small number of areas across the UK to assess the effectiveness and impact of the new model prior to national roll out. The Act will repeal the current Domestic Violence Protection Notices (DVPNs) and Domestic Violence Protection Orders (DVPOs).

Protection for victims and witnesses in legal proceedings – Part 5

The Act contains enhanced scope for special measures directions to be made in family (and other types of proceedings) where a person is a victim of or at risk of domestic abuse. The aim of the measures is to help victims to give best quality evidence and participate in proceedings without there being any perpetuation of the domestic abuse they have experienced. At the early stages of proceedings, it is important to consider what support may be available to a victim, what relief might achieve this and what special measures can assist a potential victim to feel most comfortable to provide best evidence that is going to be of the greatest assistance to the court.

1. s. 63 Special measures in family proceedings for victims of domestic abuse

DAA 2021, s 63 applies where rules of court provide that the court may make a special measures direction in relation to a person (‘P’) who is a party or witness in family proceedings. The relevant rules are FPR 2010, SI 2010/2955, Pt 3A, as amended by the Family Procedure (Amendment No 2) Rules 2021, SI 2021/875, as to the court’s duty to consider making participation directions.

Where P is, or is at risk of being, a victim of domestic abuse carried out by a person listed in DAA 2021, s 63(3), it is to be assumed that the following matters are likely to be diminished by reason of vulnerability:

1. the quality of P’s evidence, and
2. where P is a party to the proceedings, P’s participation in the proceedings.

The persons referred to in DAA 2021, s 63(2) are:

1. a party to the proceedings
2. a relative of a party to the proceedings (other than P)
3. a witness in the proceedings

An exception may be made where P does not wish to be deemed to be eligible for the making of a special measures direction under DAA 2021, s 63(2) and makes a request that the assumption set out in FPR 2010, SI 2010/2955, 3A.2A(1), under which the court must consider whether it is necessary to make one or more participation directions, does not apply to them if they do not wish it to.

‘As provided by [FPR 2010, SI 2010/2955, 3A.2A], where it is stated that a party or witness is, or as at risk of being, a victim of domestic abuse carried out by certain third parties, it is to be automatically assumed for the purposes of [FPR 2010, SI 2010/2955, Pt 3A] that they are vulnerable. For such parties and witnesses, the court should proceed directly to a consideration of whether a participation direction is necessary.’

The kinds of directions which may be made by the court include preventing a party from seeing another party, allowing a witness or party to give evidence by video link, providing for a party or witness to participate with the assistance of an intermediary, etc.

1. 31 – Prohibition of cross-examination

 The Act (at s.65) creates a new section Part 4B to the Matrimonial and Family Proceedings Act which will incorporate s. 31 of the Act. FPR 2010, PD 3AB sets out procedural requirements in relation to the prohibition of cross-examination in person in family proceedings under MFPA 1984, Pt 4B. This does not apply in relation to family proceedings started before 21 July 2022 (the day s.65 of the DAA 2021 came into force). The new provisions may be used to prevent cross examination in person by a person who has been convicted of, given a caution for, or been charged with a specified offence; or a person against whom a protective injunction is in force. The prohibition is also extended to situations where specified evidence is adduced of domestic violence. The court will also have power to prohibit a party from cross-examining a witness in person if:

• the “quality condition” or the “significant distress condition”, and
• it is not contrary to the interests of justice to give the direction.

The “quality condition” is met if the quality of evidence given by the witness on cross-examination—

• is likely to be diminished if the cross-examination (or continued cross-examination) is conducted by the party in person, and
• would be likely to be improved if a direction were given under this section.

The “significant distress condition” is met if—

• the cross-examination (or continued cross-examination) of the witness by the party in person would be likely to cause significant distress to the witness or the party, and
• that distress is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.

Pursuant to s 31W, the court must consider alternatives to cross-examination in person and, in particular, appointing a ‘qualified legal representative’ to undertake the cross examination for that party and make consequential directions for the preparation of that process, including adjourning the case to allow time to instruct and prepare. Funding is available for the legal representative from central funds (s 31X).

New s91A Children Act 1989.

1. 67 of the DAA 2021 provides for a new s. 91A to establish a new, lower statutory threshold for the deployment of a s. 91(14) prohibition by which the power may be exercised when the court is satisfied that the making of an application for a Children Act 1989 order of a specified kind would put the child concerned or another individual ‘at risk of harm’. There is no definition of who the other individual could be that could be put at risk of harm. However, it is most likely to be, but is not limited to, another person who has parental responsibility for the child and/or is living with or has contact with the child, or any other individual who would be a prospective respondent to a future application. The reference in to “harm” is to be read as a reference to ill treatment or the impairment of physical or mental health and can include psychological or emotional harm.

In deciding whether or not to grant leave to make a further application the court must consider whether there has been a material change in circumstances since the order (under s. 91(14)) was made. The court may make the order under s. 91(14) of its own motion.

At Stowe Family Law in any case where domestic abuse may be a factor, we advise our clients at the earliest opportunity about their potential eligibility for legal aid.