Domestic Abuse Bill leaves vulnerable survivors behind

The long-awaited Domestic Abuse Bill 2019-2021 is on its way through parliament. Despite the delay in its delivery, the Bill will implement much needed changes to increase protection for survivors of domestic abuse and consistency within the courts. Frustratingly for many, the Bill still does not go far enough towards protecting the most vulnerable survivors of abuse.

Why do we need a Domestic Abuse Bill?

Domestic abuse is an issue which cuts across multiple areas of the law. Perpetrators of domestic abuse can be prosecuted under criminal law for offences with survivors attending courts as witnesses. Survivors of abuse can apply to the family courts for protective injunctions but also often face their abusers as part of divorce, financial remedy and child contact proceedings. For years, campaigners have called for reform and enhanced protection for vulnerable survivors not only in law but throughout the legal process.

Where is the Bill now?

Despite its importance, the issue of domestic abuse has not been at the fore of the political agenda. The surge in governmental and media attention that the issue received during the COVID-19 lockdown is not representative of its treatment prior to the pandemic. In fact, the Domestic Violence and Abuse Bill was first promised in the Queen’s Speech in 2017. After a lengthy consultation period and having faced significant delays as a result of Brexit, the Domestic Abuse Bill 2017-19 was not introduced in the House of Commons until July 2019. Then before its second reading, parliament was prorogued and the Bill fell away.

The Domestic Abuse Bill 2019-2021 was reintroduced in March 2020 and has now been through the House of Commons. It is currently at the second stage on its way through the House of Lords (Second Reading). The Second Reading, which is the general debate on all aspects of the Bill, is yet to be scheduled. The Bill will then continue through the Lords and if there are any amendments, it will return to the Commons for consideration. If there are no amendments, the Bill will progress to receive the royal ascent.

What are the key provisions under the Bill?

In addition to establishing in law the office of the Domestic Abuse Commissioner to provide public leadership on domestic abuse, the Bill includes the following key provisions:

1. Statutory definition of domestic abuse

There is currently no legal definition of domestic abuse, instead a cross-governmental definition is used. The Bill creates a statutory definition of domestic abuse, which recognises that abuse includes emotional, coercive and controlling behaviour and economic abuse. The Bill also recognises that domestic abuse can impact a child who sees, hears or experiences the effects of the abuse, and treats these children as survivors of domestic abuse in their own right where they are related to either the abuser or the abused.

2. Domestic Abuse Protection Notices and Domestic Abuse Protection Orders

The Bill provides for a new Domestic Abuse Protection Notice (DAPN) and Domestic Abuse Protection Order (DAPO), which will replace the current Domestic Violence Protection Notices (DVPN) and Domestic Violence Protection Orders (DVPOs). The new mechanisms will provide immediate protection for survivors following incidents of abuse and have a broader scope than the previous provisions. DAPNs will function much like the previous DVPNs – they will be issued by the police and can require a perpetrator to leave the survivor’s home for up to 48 hours.

As with DVPOs, the police will be able to apply for a DAPO at a magistrates’ court to provide protection for survivors where there is insufficient evidence to charge a perpetrator. DAPOs will also draw together the current regime of the various family and criminal protective orders available whilst broadening the scope of the court’s powers. Using DAPOs, the courts will be able to impose prohibitions of perpetrators such as restricting any form of contact with the survivor. DAPOs will also be able to impose positive requirements on perpetrators for instance requiring them to attend behavioural change programmes, alcohol or substance abuse programmes or mental health assessments. The Bill empowers courts to use electronic monitoring to supervise a perpetrator’s compliance with a DAPO. A key change here is that survivors themselves and specified third parties (such as friends or family members of the survivor or specialist support workers) will be able to apply for DAPOs directly to the family courts. The criminal, family and civil courts will also be able to make a DAPO during existing court proceedings. Breach of a DAPO will be a criminal offence with a maximum penalty of up to five years’ imprisonment, or a fine, or both. It will also be dealt with as civil contempt of court.

The other protective orders which are currently available such as non-molestation orders and restraining orders will remain in place so that they can be used in non-domestic abuse cases.

3. Changes to cross examination rules in the family and civil courts

Perpetrators of abuse who are litigants in person (unrepresented parties to proceedings) currently have the ability to cross-examine the abused party where live witness evidence is being given in a hearing. Litigants in person have become increasingly common in recent years and have, in some instances, been able to perpetuate abuse through the courts including via cross-examination.

The new Bill will prohibit perpetrators and alleged perpetrators of abuse acting as litigants in person from cross-examining survivors in person in family court proceedings. There will be an automatic ban where one party has been convicted of, given a caution for, or charged with certain offences against the witness and where an on-notice protective injunction is in place between the party and witness. The family courts will also be given the power to appoint a public-funded advocate to carry out the cross-examination where necessary on behalf of a party who is prohibited from cross-examining the witness in person.

Similar protection is afforded to survivors in the civil courts, where a witness can give evidence without being cross-examined by an unrepresented party where the court considers that this would diminish the quality of the witness’s evidence or cause the witness significant distress.

4. Special measures in family and criminal courts

The family courts currently have a duty to consider: (1) Whether a person’s evidence is likely to be diminished due to ‘vulnerability’, which might include domestic abuse; and (2) if so, whether ‘special measures’ are necessary to assist them. Special measures can include provisions such as separate waiting rooms and screens for use while giving evidence.

The Bill provides that survivors of abuse will be automatically eligible for special measures in family court proceedings. If the court then deems it necessary to assist the survivor, special measures will be provided. Survivors can opt out and participate without special measures if they choose to. All domestic abuse survivors will also be eligible for assistance when giving evidence in criminal proceedings.

5. Safe accommodation, homelessness and secure tenancies

Currently, survivors need to prove to the local authority that they are vulnerable as a result of their abuse in order to access accommodation. The Bill requires local authorities to give priority need status to survivors who are homeless and eligible for assistance. The Bill will also provide greater protection for those in situations of abuse who are lifetime social tenants and place a duty on local authorities to provide safe accommodation and support to survivors of abuse and their children.

6. ‘Rough sex defence’

The principle that a person cannot consent to assault occasioning actual bodily harm for public policy reasons was established in R v Brown [1993] 2 WLR 556. Despite this, the government put forward an amendment as ‘clarification in statute of current case law’ reiterating the principle from Brown and clarifying that a person cannot consent to their own death. This has come about as campaigners have voiced concerns that a ‘rough sex defence’ is increasingly being used whereby defendants state that they have accidentally killed sexual partners during BDSM sex to which the victim consented.

Vulnerable survivors have been left behind

A glaring omission from the Bill is protection for survivors who are migrants with no recourse to public funds. Under Section 115 of the Immigration and Asylum Act 1999, a person will have ‘no recourse to public funds’ (NRPF) if they are ‘subject to immigration control’. This group includes extremely vulnerable people, such as unaccompanied asylum seeking children who have left the care system and those on spousal and student visas. NRPF individuals are not eligible for the majority of welfare benefits, leaving them extremely vulnerable to homelessness, exploitation and further abuse when escaping situations of abuse.

Most shockingly, survivors of domestic abuse with NRPF are usually unable to secure places in refuges as these establishments depend on the rent paid by survivors in receipt of housing benefit. Often NRPF survivors, who are disproportionately black and minority ethnic women, remain trapped in situations of abuse for fear of destitution and due to the lack of support in place.

In July, MPs voted not to include a clause in the Bill lifting NRPF for migrant women suffering domestic abuse, meaning that an unparalleled opportunity to protect some of the most vulnerable in our society has likely been lost. The government has instead proposed a pilot scheme to determine how migrant women can access support. While this may indicate future reform, it does not provide migrant survivors with the legal protections they so desperately need.

Despite the many positives of the new Bill, further reform is urgently needed to protect some of the most vulnerable survivors.