In response to the ever increasing need to protect and support victims of domestic abuse and ensure sufficient preventative measures for perpetrators, the UK government has held a consultation to address the approach to four main areas relating to domestic abuse; promoting awareness, protecting and supporting victims, pursuing and deterring offenders and improving performance of public agencies. In response to this consultation, the Domestic Abuse Act 2021 was implemented into UK law in April 2021.
Whilst the Domestic Abuse Act doesn’t create a new offence, it does create a new statutory definition of domestic abuse. Not only does this statutory definition allow for all public agencies and individuals to ‘sing from the same hymn sheet’. It also incorporates non-physical abuse into the definition of domestic abuse. Economic abuse is now specifically recognised under this definition, so where one party seeks to prevent the other from being able to acquire, use or maintain money, property, goods or services, this would be considered to be domestic abuse by virtue of the Domestic Abuse Act.
The revised definition also allows for children to be recognised as victims of domestic abuse in their own right if they see, hear or experience the effects of the abuse. Previously, they had only been considered to have witnessed this abuse. It is important to note that while the Domestic Abuse Act recognises children as victims, the legislation specifically applies to individuals over the age of 16 and any victim younger than this will continue to be protected by various child abuse laws. Whilst the act has lowered the age limit from 18 to 16 to recognise that younger people can be both victims and perpetrators of domestic abuse, it has been careful not to blur the lines between domestic and child abuse.
The new definition ensures that the law recognises that domestic abuse can occur between non-romantic family members, parties who no longer live together and those who share, or have shared, parental responsibility for the same child. This provides much needed protection for people who may no longer be in a relationship but who must continue communication for the sake a child and are continuing to experience abuse.
The Domestic Abuse Act makes specific provision for victims in participation in family law proceedings. It is not necessary for a court to make a finding of fact on domestic abuse before taking action. It is assumed that due to vulnerability, the quality of the evidence and participation of the victim in the proceedings is likely to be diminished. To attempt to combat this, there will be an automatic right to special measures such as screens in the court room, separate waiting rooms and the prohibition of the abuser cross examining the victim. In certain cases, the victim will also not be expected to cross examine their abuser. The Secretary of State will provide financial assistance for court appointed advocates to cross examine the parties in these circumstances and this will not be at the expense of either the victim or the abuser.
The family court can also now apply a ‘barring order’ under the Children Act, where domestic abuse is such that it is necessary to prevent further applications to court that may be used as a way of indirectly abusing a party.
Currently, the are two main types of protective injunctions available under family law; a non-molestation and occupation order. A non-molestation order prevents a person from using or threatening violence or intimidating, harassing or pestering another. An occupation order can restrict a person from entering the home or surrounding areas. It is expected that in early 2023 the implementation of Domestic Abuse Protection Notices and Domestic Abuse Protection Orders (to replace Domestic Violence Protection Notices and Domestic Violence Protection Orders) will allow victims of domestic abuse, police and relevant third parties to all apply to the court for the same protection. In practice, this will allow family lawyers to apply for further protective measures on behalf of their clients. Breach of a DAPN or DAPO would result in a criminal offence and is punishable by up to five years’ imprisonment, or a fine, or both.
Non-molestation and occupation orders will remain in place for incidents where domestic abuse isn’t a factor and the perpetrator is not a current or former intimate partner or a family member. Much like non-molestation and occupation orders, there will be no court fee payable when applying for the Domestic Abuse Protection Notices and Orders to ensure finances aren’t a restriction on seeking protection, especially where economic abuse could be a factor.
Whilst this blog focuses on the effects of the Domestic Abuse Act on family law specifically, there are various other implications of the act, such as:
- Electronic tagging/monitoring of perpetrators
- Requirement for perpetrators to report to the police on a regular basis
- Medical evidence to prove domestic abuse can no longer be chargeable
- A 3 year pilot scheme of polygraph examinations for high risk perpetrators
- A Domestic Abuse Commissioner to stand up for survivors
- A legal duty on local authorities to provide safe accommodation for victims
- New criminal offences, including non-fatal strangulation and threats to disclose private sexual images
At Band Hatton Button, our lawyers are all members of Resolution – First for Family Law and will help you resolve matters in a conciliatory way. We also have an Accredited Family Mediator who can assist with all types of Family Mediation.
Ruth Hayfield – Paralegal – Family Team