Supplementary written evidence submitted by Resolution (DAB0521)

 

Draft Domestic Abuse Bill Committee

 

General

  1. Legislation may have little meaningful impact without real scope for more training and specialism and resources on the ground across the family justice system and beyond, for example, for supervised contact centres and perpetrator programmes.   Court capacity for private law proceedings, with long waits for fact finding hearings as required, is of current concern to our members.

Definition of domestic abuse 

  1. The Committee may find it helpful to have in mind

 

a)      the definitions in Practice Direction 12J-Child Arrangements and Contact Orders: Domestic Abuse and Harm:

 

“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

 

“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;

             

“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

 

“controlling behaviour” means an act or pattern 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;

 

“development” means physical, intellectual, emotional, social or behavioural development;


“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

 

“health” means physical or mental health.

 

b)      the definition of “associated persons” in the Family Law Act 1996 which includes “a person if same household they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder”.

 

Special measures in the family court

  1. Although there have been changes to the Family Procedure Rules, it is widely recognised that current special measures facilities in the family court hearings, such as video and audio link and screen facilities, are not satisfactory or on a par with those facilities available in the criminal courts. In our members’ experience, it can also be challenging to secure funding for intermediaries to assist vulnerable or intimidated witnesses.

 

  1. Special measures for children and vulnerable adults in family proceedings should not be subject to availability – if the court considers they are necessary, they should be provided, especially in the context of the intended reduced but improved court estate.  This Bill should provide an opportunity to clarify that position.

 

  1. There is a need to have special measures as matter of course in family cases which meet certain criteria, particularly where a party has a relevant conviction or caution, there has been a finding of fact of domestic abuse, or where there are live allegations of domestic abuse. 

Will the draft Bill’s proposals for preventing cross examination in person protect all those who need protection? 

  1. As stated in oral evidence, it would be helpful if it was also mandatory to prohibit cross-examination in family proceedings where there has been a finding of fact of domestic abuse, such as where there has been a finding in the family court that there has been domestic abuse.

 

  1. The issue of perpetrators using the family justice procedure to abuse victims is much wider than cross examination, there are ancillary issues - such as repeat applications and dragging the process out, among others. It can also be the case that a perpetrator is legally represented but the victim is not.  These concerns raise the question of whether legal aid for representation of both victims and perpetrators, without the need for evidence as currently prescribed, would address the problem more effectively, providing a more consistent policy position and equality of arms.

 

  1. Legal representation can also guard against inconsistency in the court’s application of discretion to prevent cross examination.

Uncertain immigration status

  1. There is a particular gap in the domestic violence gateway to private family legal aid intended to protect victims of abuse.  The Civil Legal Aid Procedure Regulations include as prescribed evidence of abuse A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.  However, Rule 289B provided Indefinite Leave to Remain for victims of domestic violence only until July 2012. This was then replaced by Appendix FM of the Immigration Rules. It can’t possibly be the case that the intention was to exclude migrant women applying after July 2012.  Rights of Women have highlighted that amending the Procedure Regulations to refer to both 289B and Appendix FM will still not be sufficient to cover all eventualities under which a migrant woman might be granted leave to remain in the UK as a victim of domestic abuse or future-proof this point. Currently, it is possible for the Home Office to grant leave to remain outside the rules.  We support Rights of Women’s recommendation that the Procedure Regulations be amended to include as prescribed evidence A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom as a victim of domestic violence.

 

Preventative approaches

  1. The nature of domestic abuse, which can be complex, long term and chronic, is unlikely to be resolved by one short term fix.  The family court can play its part in identifying domestic abuse and placing a protective framework around victims and their children, but the family court process in itself cannot rectify the issue.  Without an interagency approach and significant investment and training across all parts of the system, it is often challenging to change behaviour.  Developing perpetrator insight is probably best managed within a therapeutic context.  But our members report lack of funding for perpetrator programmes and problems of meeting criteria for referrals to such. The family courts and others should also be aware that where a perpetrator programme is available and attended, this is not necessarily evidence of a change of behaviour.

 

  1. Whilst dispute resolution is not necessarily ruled out in cases involving issues of domestic abuse, victims of abuse or those at risk of such are rightly not required to use these services. 

 

  1. The use of family mediation in relation to families where there is or has been actual or risk of domestic abuse has remained a difficult and complex issue.  Generally, family mediators have a responsibility to ensure the safety of any individual involved (and especially any child or children) and are required to assess carefully ahead of any mediation the suitability of a mediation process for the individuals involved, which is set out in the FMC Code of Practice and is echoed in the legislative rules and procedures and practice requirements relating to for example MIAMs.  This would include screening and assessment as to whether there is or has been (or is risk of) domestic abuse of any kind and of an individual’s capacity to speak and to negotiate on their own behalf.   Clearly where there is or has been a pattern of abusive, coercive or controlling behaviour, individual capacity may be a particular issue as victims may be very aware of the consequences of not complying with what their partner wants from any mediation process and/or may lack confidence or self-esteem to negotiate freely. 

 

  1. At present, a number of mediators offer ‘shuttle’ mediation, that is where the parties negotiate separately from one another (usually in separate rooms) with the mediator ‘shuttling’ between them.  However, this can be problematic in terms of an inability to ensure the safety of individuals outside of the mediation (especially where they may remain under the same roof) and in situations where an individual lacks capacity or confidence to speak to their own needs.

 

  1. There are divisions of opinion within the mediator community as to the appropriateness of mediating where there is or may be domestic abuse in the couple relationship, a lack of national standards in relation to ‘shuttle mediation’ and no requirement that mediators should attend regular update training in relation to appropriate methods of screening and assessment.  There is also and currently a lack of a multi-agency screening tool that might aid better awareness of risk and could be utilised cross-professionally.

 

  1. Mediators are not experts or diagnosticians in matters of domestic abuse, they can only assess whether a mediation process is or is not appropriate given the circumstances reported to them.  However, mediators are often faced with difficult decisions in that couples who lack funds for e.g. legal advice or who are unwilling for any number of reasons to seek the help of supporting agencies are often simply unable to find means to make arrangements for their finances or for their children.

Are there other legislative measures required to ensure fair court proceedings where there is domestic abuse between the parties, or should we be looking at non-legislative measures such as the revision of Practice Direction 12J?

  1. As referenced in paragraph 7 above, there remains a need a need to look again at the availability of family legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.    

 

  1. Whilst the regulations controlling the gateway to private family legal aid for victims have been somewhat relaxed, this still represents a barrier for individuals seeking to remove themselves from an abusive relationship.  The word of the applicant and/or the specialist family law solicitor professionally screening for domestic abuse is not accepted.  It is disappointing that in the current political context it is taking so long for further correcting and other protective changes to be made to the current regulations. 

 

  1. There is a need for the consistent implementation of PD12J.  Anecdotally Resolution members report the inconsistent understanding and application of PD12J/an inconsistent approach to the need for fact finding (ranging from the lack of ability to progress if any low level allegation is made, to some more serious cases being ‘nodded through’ without hearing evidence or making any findings of fact), particularly where cases are allocated to magistrates and may be unsuitable for that tier. 

 

  1. Some of our members suggest first hearings to apply the principles of PD12J before specialist domestic abuse judges (a domestic abuse case management hearing), perhaps supported by a specialist Cafcass team, as soon as allegations are made on a C1A.  A specialist judge would consider what the issues are for the court to determine, and whether the allegations if proven would affect the decision of the court as to child arrangements in relation to these children, together with the consequent case management of the case and of any interim application.  That judge would then maintain a presence in certain cases.  

 

April 2019