The Domestic Abuse Bill: a real opportunity or ‘words are wind’?
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Marc Bloomfield
The draft Domestic Abuse (DA) Bill and response to the consultation leading up to it were published by the government last month (Transforming the response to domestic abuse: consultation response and draft bill, CP 15, Home Office/Ministry of Justice, 21 January 2019). It purports to be a ‘once-in-a-generation opportunity to transform the response to this terrible crime’ (page 1), yet its arrival has been met with, at best, muted hope mixed with considerable caution by those specialising in private and public family cases, as well as the front-line NGOs working on the issue. This is not surprising: we’ve heard it all before with the violence against women and girls strategy (Ending violence against women and girls strategy 2016–2020, Home Office, March 2016), and, indeed, every new measure brought in to alleviate the difficulties in dealing with this issue. The problem has been that it’s been a case of one step forward, three steps back, at best, over the past decade, with LASPO being the biggest barrier to access to justice in a generation for victims of DA.
The Home Office report, The economic and social costs of domestic abuse (Research Report 107), which looks at the holistic costs of DA to our society per year, concluded that in the year 2016/17, DA cost England and Wales (not even the whole of the UK) £66bn. That report was not published until 21 January 2019, when it was sneaked out with the DA bill itself, but it’s clear that cost-cutting is the motivation for this purported sea change by the government.
The bill itself brings in a raft of measures that, at first glance, seem game-changing:
the prevention of cross-examination of victims by perpetrators – potentially the biggest ‘win’, depending on application;
the introduction of a new government definition of DA to include economic abuse and coercive control;
the establishment of a DA commissioner to drive the response to DA;
new police powers including police DA protection notices and orders;
provision of automatic eligibility for special measures for victims in criminal courts; and
a new crisis support system for those with no recourse to public funds.
All of this is welcome, but it doesn’t go nearly far enough and gives no indication of where the money is coming from and how these new measures will be paid for in practice.
Currently, the family justice service (FJS) is crisis. Cuts to the court estate mean fewer courts having to deal with a significant increase in business with the same resources. Cuts to legal aid mean a significant rise in the numbers of litigants in person, a situation that adds to the court time required to deal with private law cases. This is leading to significant stress on judges and advocates alike, as noted by the president of the Family Division, Sir Andrew McFarlane, both in his role as the chair of the Care Crisis Review and in his first View from the president’s chambers, which came out this week (24 January). Cuts to court staff numbers mean significant delay in processing applications and orders.
Significant numbers of private family law cases, if not the majority, involve some kind of DA. There has been a marked shift in how family courts treat these cases, Family Procedure Rules Practice Direction 12J (PD12J) revised notwithstanding, with district judges encouraging victims to accept an undertaking rather than ‘go through the stress and unpleasantness of a trial, and be cross examined’,1Direct quotation from a district judge at an early on-notice hearing concerning serious allegations of abuse including honour-based violence. and not implementing PD12J properly, by failing properly to consider the impact of the abuse in cases of the impact of contact on the mother (as is the usual case) and the child. Simply saying at the outset of a case, ‘Well, on the face of it, the abuse alleged isn’t going to prevent direct contact, so we don’t need a fact-finding hearing,’ is not compliant with their duty under PD12J. What will in no short measure be driving this attitude to private law cases must the perfect storm of fewer family courts and resources, and a tsunami of care cases prompting the Care Crisis Review. While HM Courts and Tribunals Service denies there is any such policy, put simply, a lack of resources for dealing with private law cases means they will bounce back in short order as public law cases. This is not addressed in any way by the new bill.
Add to these costs the police,2Vikram Dodd, ‘Police to sue government unless it backs down over cuts’, Guardian, 30 October 2018. probation services and local authorities’ children’s services,3Michael Savage, ‘Revealed: cash crisis pushing child services to tipping point’, Guardian, 1 September 2018. and it becomes easy to see where the figure of £66bn comes from.
The Home Affairs Select Committee (HASC) reported in October 20184Domestic abuse. Ninth report of session 2017–19, HC 1015, 22 October 2018. that it found the proposed bill deficient in a number of ways:
there is a desperate shortage of refuge places, with many turning away as many as 60 per cent of their referrals;
welfare benefit cuts have endangered victims of abuse; and
there needs to be a national register of serial stalkers.
Victims have no place to go without ring-fenced funding for refuges. Thankfully, the government proposal to remove housing benefit from refuge placements and replace them with supported housing funding via already cash-strapped local authorities (leaving them to decide between funding care homes, disability resources or refuges, among other calls on their limited resources), which would undoubtedly made the refuge crisis even worse, has been abandoned. Refuge places are lifelines and their funding must be ring-fenced, but the bill does not address this.
The HASC report also highlighted the way in which different government departments pull against each other: universal credit to be paid to one named member of the household does nothing to help the victim of financial abuse feed her kids and pay the bills.
Similarly, there is little point in giving the police enhanced powers in relation to domestic violence protection notices and orders, when they lack the resources to utilise those that they already have. Without a significant cash injection, new police powers are meaningless
To come back to the critical issue of the cross-examination of victims by their perpetrators in court, this is rightly addressed. However, how this can be managed when, as highlighted in PD12J, it has to be recognised that the perpetrator may well be using the court process to perpetuate the abuse where he has no other access to the victim? If he wants to be a litigant in person, or wishes to be represented by an advocate, but cross-examine the witness himself, the bill rightly says he will not be permitted to. How will this be funded? The advocates with the coalface expertise in dealing with these issues tend to be funded by legal aid, and we are constantly told there is no more money. At first glance, Part 4 of the bill promotes a feeling of déjà vu as it is limited as were the original domestic violence funding regulations under LASPO. It is very narrow and must be widened by challenges in the bills stage. If an advocate is to be appointed for the perpetrator, however, the bill gives only ‘maybes’ – maybe out of central funding, maybe regulations will define the rate of pay.
The government response to the consultation discusses funding this or that by £100,000 or £200,000 but in the face of the real costs of austerity to the sector, it is a tiny drop in a huge ocean. The professional and voluntary sectors are going to have to get closely involved during the bill stages of a ‘once-in-a-lifetime opportunity’ or it will be nothing more than an unfulfilled wish list.
 
1     Direct quotation from a district judge at an early on-notice hearing concerning serious allegations of abuse including honour-based violence. »
2     Vikram Dodd, ‘Police to sue government unless it backs down over cuts’, Guardian, 30 October 2018. »
3     Michael Savage, ‘Revealed: cash crisis pushing child services to tipping point’, Guardian, 1 September 2018. »
4     Domestic abuse. Ninth report of session 2017–19, HC 1015, 22 October 2018. »

About the author(s)

Description: Cris McCurley
Cris McCurley is a partner at Ben Hoare Bell.