Domestic Abuse Act 2021—Long Overdue

www.newlawjournal.co.uk | 18 June 2021 FAMILY LEGAL UPDATE 9 Domestic Abuse Act 2021—long overdue Family lawyers need to ensure they have a clear & comprehensive understanding of the wide-ranging nature of domestic abuse, say Jenny Duggan & Francesca White © iStockphoto/kemalbas

IN BRIEF and coercive and controlling behaviour. which go beyond the non-molestation or f The Domestic Abuse Act claims to There will no doubt be much debate in occupation injunctive orders we typically provide protection to millions of people who cases as to what constitutes such abuse. grapple with in family proceedings. experience domestic abuse and strengthen The campaign group Surviving Economic These orders can impose electronic measures to tackle perpetrators. Abuse cites examples of ‘economic monitoring requirements and include f It expands the legal definition of domestic abuse’, such as preventing a partner positive obligation orders to address abuse beyond physical abuse to include from working or training, building up particular behaviours, such as anger or emotional abuse, coercive or controlling debts in a partner’s name (sometimes addiction. behaviour, and economic abuse. without their knowledge) and ensuring a (6) The o!ce of the Domestic Abuse f It recognises children as victims if they see, partner’s salary is paid into a joint bank Commissioner has now been established hear or experience the effects of abuse. account to which they do not have access. in law to stand up for victims, raise public Importantly, coercive and controlling awareness and hold local authorities, the he home is a space in which we behaviour covers post-separation abuse, legal system and other statutory agencies should feel safe, and yet it is a which we see so often in the Family to account in tackling abuse. Tsetting in which abuse is inflicted Court in both children and financial upon so many, with at least 40% proceedings. The Domestic Abuse Act has been of private law children cases involving (2) Children who see, hear or experience celebrated as a ‘landmark piece of allegations of domestic abuse. The impact a the e"ects of abuse are now recognised legislation’, ‘long overdue’, and ‘could not be volatile environment can have upon victims as victims in their own right. This is more needed’. This rings true. The Court of of abuse, and in particular children, is crucial, as the actions and words of an Appeal case of Re H-N and Others , to which both devastating and long-lasting. Indeed, abuser do not just impact the person to we now turn, highlights why such legislative so many family lawyers will have heard whom they direct their fist or voice but progress was long overdue. the stories of abuse present in marriages all those trapped together in the same spanning decades (including physical, home. Indeed, there are hundreds of Court of Appeal case: Re H-N and emotional and economic abuse) and of thousands of stories of children who Others people who are subjected to coercive or cower and hide as they witness domestic controlling behaviour long after they have abuse in their home. It is clear that, from Shocking first instance decisions had the courage to end a relationship. a psychological perspective, witnessing In Re H-N and Others, the Court of Appeal Tragically, reports of domestic abuse have domestic abuse is detrimental to children heard four appeals, each in relation to cases greatly increased during the COVID-19 and it is surprising that it has taken so involving allegations of domestic abuse. pandemic as being confined to our homes long for the law to catch up. The allegations included those of rape, became a reality for us all. There have, (3) ‘Revenge porn’ is now recognised as physical, emotional and financial abuse, and however, been recent developments in the a criminal o"ence (including threats wider patterns of coercive and controlling form of the Domestic Abuse Act 2021 and to share intimate images or videos, behaviour. While many commentators have the Court of Appeal case of Re H-N and others intending to cause distress), together glossed over the facts of those four cases, it is (children) (domestic abuse: finding of fact with non-fatal strangulation (including important to have some appreciation of the hearings) [2021] EWCA Civ 448, [2021] All any act restricting a person’s ability to errors of the first instance judges that clearly ER (D) 11 (Apr) which herald a welcome breathe). Consent to serious harm for prompted the Court of Appeal to deliver such step in the right direction to recognise that sexual gratification is no longer a defence a wide-ranging judgment. abuse can take many forms and must be in the criminal courts, thereby ending the One such example is the case of Re T , properly factored into decisions made in the ‘rough sex defence’. which makes for shocking reading. The judge Family Court. (4) Victims of abuse will no longer be in this case had found that the father’s words directly cross-examined by perpetrators to the e"ect that he would kill the mother Domestic Abuse Act in the Family Court, and victims will be were just ‘commonly used in anger’ and ‘do The Domestic Abuse Act 2021 seeks to provided with better access to special not import any genuine threat to life’. All provide millions of people with much greater measures to help prevent intimidation. the while, the judge accepted that the father protection from all forms of abuse and These measures include being able to give probably held the mother ‘in the vicinity of strengthen measures to tackle perpetrators. evidence via video link, which is a huge her neck’ when he spoke those words. An The Act is wide-ranging, and while the step forward in circumstances in which incident that occurred a month later in which following list is not exhaustive, the key cross-examination of this nature has been the father came up behind the mother (who developments are set out below: found to diminish a victim’s ability to give was holding their baby) and put a plastic (1) The definition of domestic abuse has evidence and can cause severe trauma. bag over her head before saying, ‘this was been extended beyond physical and (5) Victims of abuse may now apply for the way she would die’, was regarded by the sexual abuse, to include economic abuse Domestic Abuse Protection Orders, judge as a ‘prank’. 10 LEGAL UPDATE FAMILY 18 June 2021 | www.newlawjournal.co.uk

The Court of Appeal quite rightly when balanced against the nature of the whether in a criminal case this would concluded that these were in fact two allegations and the impact on children. amount to actual bodily harm or grievous intimidating and highly abusive incidents The Court of Appeal maintained that bodily harm. and the judge had failed to acknowledge the Practice Direction 12J in the Family seriousness of the father’s reference to dying Procedure Rules 2010 was fit for purpose Impact on family law cases and killing. in providing guidance on determining The impact of the Domestic Abuse Act cannot whether or not it is necessary to conduct be overstated, and it will no doubt in years Court of Appeal guidance a fact-finding hearing. to come bolster victims’ ability to hold their The Court of Appeal also took this (3) Coercive and controlling behaviour: abusers to account. Family lawyers should be opportunity to set out some general guidance There should be greater awareness alive to the possibility of appealing cases in as to how the Family Court should deal with surrounding coercive and controlling which the judge does not properly recognise allegations of domestic abuse: behaviour and more focused training the impact of abuse, as was so starkly shown (1) Scott Schedules: There should be a move for the relevant professionals. However, to be the case in Re H-N and Others . away from the use of Scott Schedules, investigations into and assessments In practical terms, given that incidents which identify in a table incidents tied of coercive and controlling behaviour of domestic abuse rarely occur in to a particular date and time. This is a should not disproportionately increase isolation, clients should keep clear and welcome development as many family the scale and length of private law contemporaneous records of such patterns of lawyers will have experienced the proceedings. It was also recognised that behaviour which can be relied upon in court. frustration of limiting their clients’ ‘not all directive, assertive, stubborn or This will become even more important given allegations (which may span decades) to selfish behaviour, will be “abuse”’. the greater recognition of the pernicious perhaps ten examples in a concise table, (4) Criminal concepts: The family courts and nature of domestic abuse. knowing that doing so entirely detracts those who appear in them should not shy Overall, it is incumbent upon us as family from the way in which the abuse was away from using criminal law concepts lawyers to ensure that we have a clear and perpetrated. Indeed, it is clear that Scott and words such as rape. However, the comprehensive understanding of the wide- Schedules often fail to identify patterns family courts should avoid analysing ranging nature of domestic abuse so that we of coercive and controlling behaviour, evidence by direct application of can properly advise both victims and those where each incident has a cumulative criminal law to decide whether or not an against whom such allegations are made. NLJ e"ect on victims. allegation is proved. For example, when (2) Fact-finding hearings: The Family Court domestic abuse involves violence, injury Jenny Duggan, senior associate & should consider whether a fact-finding may be found to have occurred, but the associate Francesca White, Stewarts (www.stewartslaw.com).

hearing is necessary and proportionate Family Court does not need to analyse

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