Draft Domestic Abuse Bill - A legal view

In January 2019 the Government published a draft Domestic Abuse Bill. This proposed legislation has had a long consultation period and has drawn upon the viewpoints of many interested agencies, charities and researchers.

The Bill seeks to introduce the first statutory definition* of domestic abuse.

The proposed statutory definition for domestic abuse will include physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse and psychological, emotional or other abuse. Essentially, behaviour by a person (“A”) towards another person (“B”) is “domestic abuse” if –

“(a) A and B are each aged 16 or over and are personally connected, and

(b) the behaviour is abusive.”

A Domestic Abuse Commissioner is to be created whose role is to hold central and local government to account and monitor provisions and services in England and Wales. In particular, while establishing the Commissioner’s functions and powers, the bill expressly requires the Commissioner to consider the impact of domestic abuse upon children. Almost inevitably the person appointed to this role is expected to be referred to in the media as the Domestic Abuse “Czar”.

In a forward to the draft bill, the Home Secretary and Justice Secretary herald the bill as a “once-in-a-generation opportunity to transform the response to this terrible crime.” So, what are the main features? Nine measures that require primary legislation have been identified. In addition this programme of work will entail a wide range of cross-government commitments to be implemented in stages. The measures are:-

1. To provide for a statutory definition of domestic abuse.
2. Establish the office of Domestic Abuse Commissioner and set out the Commissioner’s functions and powers.
3. Provide for a new Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO).
4. Prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress.
5. Create a statutory presumption that complaints of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts.
6. Enable domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody.
7. Place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing.
8. Ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy (other than an assured tenancy), this must be a secure lifetime tenancy.
9. Extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

The success of the proposed statute is likely to depend on the level of funding made available and, even if sufficient, there appear to be some inherent problems, such as universal credit. The method of payment of this benefit is not beneficial to victims of domestic abuse because the payment is made to a household and not to individuals. While a request can be made to have universal credit split between partners, very few have done so due to fear of the consequences from the person abusing them. The lack of financial independence can lead to abuse being exasperated.

Furthermore, escaping from domestic abuse requires alternative accommodation, often on an emergency basis. Funding by local government for refuges has been severely cut and is even non-existent in some areas. As abusers will rarely voluntarily leave the joint accommodation, it is victims who have to move, often with children. Finding secure space in a refuge is becoming more and more difficult. The reform is well meant, but to work well it really will require a huge level of cross-governmental cooperation and the abandonment of departmental self-interest.

Kevin Johncock

Chartered Legal Executive

*Currently, Courts hearing applications for non-molestation orders or occupation orders have no statutory definition of what domestic violence actually means. In fact, the term 'molesting' is not even defined in the current governing statute The Family Law Act 1996. There is, however, Home Office definition of domestic violence and abuse but this is not a legal or statutory definition although it is recognised by government departments. It is often argued that any applicant who comes within the Home Office definition should at least qualify to apply for a non-molestation order.

To discuss any family legal matter or issue, you can contact Kevin Johncock or the Family team on 01892 526344.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances