The Domestic Abuse Bill received royal ascent on the 29th May 2021 and will be implemented later this year. The Act brings in important changes, many of which have been received positively by the sector and will lead to important developments enabling practitioners and those who work at the front line to raise awareness and secure protection for survivors of domestic abuse.
However, with two women dying weekly at the hands of a violent partner or ex-partner and with the horrendous escalation of abuse under lockdown, many note there have been some missed opportunities in this important piece of legislation to ensure that the new protections are available for everybody and that they are robust, workable and practical and integrate to ensure a safety net without gaps.
Importantly, the Act does define domestic abuse for the first time. It recognises emotional and economic abuse, coercive and controlling behaviour and extends the offence of coercive control to cover post separation abuse.
This reflects the lived experience of many survivors who often fall through the net of protection as several statutory services and other agencies fail to recognise post separation abuse effectively. This the first time there has been a statutory definition of domestic abuse and adopting a statutory definition should encourage a move towards zero tolerance of domestic abuse in all its forms.
Coinciding with important caselaw recognising the importance of context and coercive control will hopefully encourage a move towards a full recognition of the different types of abuse and a move away from the current mistaken hierarchy which has unfortunately been hard wired into our court process where physical abuse appears to be more significant than other forms of emotional abuse including coercive control and economic abuse.
Whilst a statutory definition will hopefully provide a platform for education and social awareness there are other significant positives in the Act. The role of the Domestic Abuse Commissioner as an independent voice has been created for the first time. The Commissioner’s role is to gather information and data on the national picture and provision for survivors of domestic abuse and to provide challenge and support to organisations that work in the sector including providers, public services and the government. The Commissioner has already made a significant impact on gathering data and raising challenge in respect of some of the gaps in provision and anomalies in protection.
The new Act recognises children as victims if they see, hear or otherwise experience the effects of abuse.
This statutory recognition of the impact of abuse on children is an important development as it inevitably must lead to specific funding for services to support children. Similarly the Act also places a duty on Tier 1 authorities including the Greater London Authority to assess need and provide safe accommodation for survivors and their children. They will be duty bound to give automatic priority need to people made homeless by domestic abuse and ensure that survivors with lifetime or assured tenancies do not lose them if they need to move as a result of abuse. Duties to fund and resource are of course always worryingly dependent on the government budgets available and it will be important to ensure that the accommodation provided is of high quality and that the services provided are specialist, suitable and integrated.
The Act introduces a number of measures that will specifically impact solicitors.
Firstly, the introduction of Domestic Abuse Protection Orders (DAPOs) and Domestic Abuse Protection Notices (DAPNs) to the Act will require the government to introduce a national perpetrator strategy to introduce a new protection notice and a protection order with the potential to improve the courts’ and police force’s management of perpetrators.
DAPOs and DAPNs will replace Domestic Violence Protection orders and notices and whilst Non Molestation Orders will remain (and be funded through legal aid ) it is likely that DAPOs will be increasingly used by solicitors to protect survivors of abuse.
They have a number of advantages: not only do they impose similar restrictions upon perpetrators as Non Molestation orders but they also allow positive requirements to be attached such as a requirement to attend a perpetrators programme or other therapeutic intervention. They permit the attachment of electronic monitoring where necessary and importantly, will not have the same restrictive time limits as NMOs . These orders will be available in criminal, family and civil courts and can be applied for by victims, solicitors, third parties or made of the courts own motion.
There will be a pilot of the new orders over the next two years and engagement with the profession will be critical. It is important to maximize the positives of these new protections whilst ensuring that they sit as part of the whole package of support on offer and integrate with other family proceedings to provide holistic protection and support.
Also important for solicitors, the Act introduces a new offence of non-fatal strangulation and brings onto statute clarity that no one can consent to serious harm or being killed. The Act also extends the “revenge porn” offence to cover the threat to disclose intimate images with the intention to cause distress. In addition, it places Claire’s Law on a statutory footing.
From a procedural perspective the Act assists in clarifying in law that survivors of domestic abuse are eligible for special measures in criminal, civil and family courts and that perpetrators are prohibited from cross examining survivors in person in family and civil courts. In respect of gateway evidence the Act will prohibit GPs and other health professionals from charging a victim of domestic abuse for a letter in support of their application for legal aid.
The Act however has some significant deficiencies. The most notable of which fall into four categories.
- Migrant women
The government rejected key amendments to the legislation that would have extended its measures to migrant women. Migrant women with insecure status and women with no recourse to public funds are some of the most vulnerable women because their immigration status can be deliberately exploited by perpetrators and their access to support is limited. It is a great pity that this opportunity to ensure that nobody was left behind has not been embraced and in consequence a significant gap in protection has been created for one of the most vulnerable groups.
2. Creating a Register for Serial Perpetrators
Many frontline agencies had called for the creation of a register for serial perpetrators of domestic abuse and stalking. This was not included in the Act which means that patterns of dangerous and violent offending behaviour may continue to be overlooked and opportunities to prevent homicides missed.
Whilst it is regrettable that the opportunity to provide a far more comprehensive protection to all victims of abuse and create a safety net without such significant gaps has been missed it is important to reflect on the positives and ensure that proper funding is available so that the Act can be properly utilised to better protect survivors of abuse.
Read the Law Gazette Article here