The long overdue Domestic Abuse Act 2021
There has been a drastic increase in domestic abuse reports since the start of COVID-19 due to the constant confinement at home. However, there have been recent developments in the form of the Domestic Abuse Act 2021 and the recent Court of Appeal case of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448 which pave the way to a clearer and more comprehensive guidance to what constitutes domestic abuse and measures to address the matter.
The Domestic Abuse Act 2021 aims to greater protect millions of victims and survivors of abuse and to strengthen measures used to tackle perpetrators. This Act stresses the importance of recognising and understanding the wide-ranging nature of domestic abuse. Its main developments are set out below:
- The provision of a formal definition of domestic abuse which incorporates a range of abuses beyond physical and sexual violence, including emotional, coercive and controlling behaviour and economic abuse. Some examples of economic abuse include preventing your partner from working, forcing your partner’s salary to be paid into a joint bank account, limiting your partner’s access to money, and accumulating debts in your partner’s name with or without their knowledge. The Act also provides that coercive and controlling behaviour covers post-separation abuse, which is often the reality for families in children and financial proceedings.
- The Act recognises and addresses the detrimental psychological effects of witnessing domestic abuse at home. The words and actions of an abuser not only affects the person it is directed at, but also the children caught in the crossfire. Children who directly or indirectly experience the effects of abuse are now recognised as victims as well.
- ‘Revenge porn’ and non-fatal acts restricting one’s ability to breathe are now recognised as criminal offences. This includes, but is not limited to, sharing or threatening to disclose intimate images or videos. Consent to serious harm for sexual gratification is also no longer a defence in criminal courts (a ban on abusers using the ‘rough sex’ defence).
- Abuse victims and survivors will no longer have to endure the traumatic process of direct cross-examination by their perpetrators in the Family Court. The Act has provided special measures to create a safer environment for abuse victims and survivors, for instance, allowing evidence to be put forward through video links, providing separate waiting rooms and protective screens during hearings.
- There is a guarantee that all abuse victims and survivors will have housing priority and a safe and secure tenancy in social housing if they need to escape an abuser.
- Beyond the current non-molestation and occupation injunctive orders, abuse victims may now apply for Domestic Abuse Protection Orders which will have the ability to impose electronic monitoring requirements and contain positive obligation orders to address specific behaviours (such as anger).
- There is now a ban on general practitioners for charging for medical evidence obtained in relation to domestic abuse.
- The Domestic Abuse Commissioner’s office is now established in accordance with the law to stand up for abuse victims, as well as hold the legal system, local authorities, and other statutory bodies accountable in tackling domestic abuse.
Court of Appeal case: Re H-N and Others
The recent Court of Appeal case, Re H-N and Others, provided some general guidance on how the Family Court should deal with domestic abuse allegations.
It determined that the courts should move away from the use of Scott Schedules; an outdated and limiting allegations guidance table which often failed to identify coercive and controlling behaviour and the cumulative effect of this on victims.
The case maintained that the guidance from Practice Direction 12J in the Family Procedure Rules 2010 should be followed in determining whether a fact-finding hearing is essential. However, it also indicated that the Family Court should use their discretion in considering whether a fact-finding hearing is always necessary and proportionate when the nature of the allegations and impact on the children are clearly presented.
It also indicated that there should be more focused training for the relevant professionals that handle abuse situations, particularly in recognising and understanding coercive and controlling behaviour as abuse.
Impact on family law cases
The Domestic Abuse Act 2021 provides further clarification on what constitutes domestic abuse, provides better options and strengthens the protection of the millions of people who experience domestic abuse. These recent developments are a pragmatic approach to recognising and providing reassurance to victims all over the nation.
As incidents of domestic abuse unfortunately rarely occur in isolation, abuse victims should keep clear records which can later be relied on in court. This will become increasingly important given the wider recognition of domestic abuse’s pernicious nature.
While encouraging, this advancement in the law is but a first step to providing the security and justice that victims of domestic abuse deserve. It is a long overdue but welcome change.