The importance of the draft Domestic Abuse Bill « McAlister Family Law


The importance of the draft Domestic Abuse Bill

Nick Hodson


The draft domestic abuse bill, published this week, proposes several new initiatives to tackle domestic abuse, which is estimated to cost society £66bn: more than the amount caused by alcohol and drug misuse, cigarettes and obesity combined.

Family lawyers, including senior judiciary, have long campaigned to end the cross examination of an alleged victim by an alleged perpetrator in the Family Courts. Such a practice has long since been banned in the criminal jurisdiction.

This issue rose to prominence after the changes to legal aid were introduced in 2013. People accused of committing acts of domestic abuse were no longer entitled to public funding and would therefore have to represent themselves in the Family Court.

Mothers involved in family court hearings told the Guardian newspaper graphic descriptions of the “torture” of being questioned by abusive men. They describe how former partners can make repeated court applications to continue the harassment and in one case, a mother was cross-examined for two hours by her ex-husband, despite him being the subject of a restraining order to keep him away from her.

Sir James Munby, the President of the Family Division until July 2018, said he would like to see an end to the way in which alleged perpetrators of domestic abuse are able to cross-examine their alleged victims.

“I have expressed particular concern about the fact that alleged perpetrators are able to cross-examine their alleged victims, something that, as family judges have been pointing out for many years, would not be permitted in a criminal court,” said Sir James Munby. “Reform is required as a matter of priority.”

The draft legislation does now include the prohibition of complainants of domestic abuse being asked questions by their alleged perpetrator. The new proposal is that the court will be able to appoint an advocate to do the cross-examination and challenge the alleged victim’s version of events.

Domestic Abuse  newlegislation 

There are other new, key changes, including:

  • It introduces a new standard legal definition of domestic abuse
  • The bill sets up a new office of Domestic Abuse Commissioner
  • There are new powers through the issuing of domestic abuse protection notices and orders – breaches of these orders will carry criminal sanctions

It is important to note that this is draft legislation. Before any of it becomes law, it will have to progress through Parliament where it will be subject to amendments and possible change.  The provisions ending cross-examination in these cases has already been lost before, when the Prisons and Courts bill was scrapped as a result of the general election in 2017.  With so much parliamentary time given to Brexit, there surely are dangers that other domestic legislation may be side-lined.

It would be a crying shame if such an important development, which brings the Family Court in line with its criminal counterpart, was lost and vulnerable victims were not protected from the current outdated and cruel practice.

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