The Government has recently introduced a new Domestic Abuse Bill to Parliament. The Act also establishes the office of Domestic Abuse Commissioner. The role of the Commissioner is to encourage good practice in the prevention of domestic abuse.
For the first time there will be a Statutory Definition of ‘Domestic Abuse’. This is defined as 'behaviour which is abusive by one person towards another person'. The persons have to be personally connected. Behaviour is to be regarded as ‘abusive’ if it consists of any of the following:
To be ‘personally connected’ means individuals who are either married, civil partners, couples engaged to be married or have agreed to enter into a civil partnership, those who have been in an intimate personal relationship with one another or those who have a child or children to whom they each have parental responsibility or they are relatives.
The police will be given powers to issue a Domestic Abuse Protection Notice (DAPN) to a person if they have reasonable grounds for believing that person has been abusive towards another person to whom they are personally connected and, where the police have reasonable grounds for believing it is necessary to give such a notice to protect that individual from domestic abuse or the risk of domestic abuse.
The behaviour complained of can take place in England, Wales or elsewhere, i.e. overseas. A DAPN can provide that the recipient is not to contact the person to whom the notice is protecting and the notice can also make provision about excluding the recipient from any relevant premises, and warning that any breach of the terms of the same means they are liable to be arrested.
Once a Domestic Abuse Protection Notice has been given, the police have to apply to the court for a Domestic Abuse Protection Order (DAPO). It is also possible for an individual who is suffering from domestic abuse to make an application to the court for a DAPO. It will be the Family Court that will usually deal with such applications, except where the police apply, in which case they will generally apply to the Magistrates’ Court.
The Family Court or the High Court will also have power to make a DAPO in any other proceedings between two individuals, if it is necessary for the protection of one of the parties. A Criminal Court will be able to make a DAPO in any criminal proceedings if it is necessary. The County Court will have the power to make a DAPO where it is dealing with proceedings between two individuals and it is necessary for the protection of one of those that such an order is made.
In order for any court to make a DAPO it has to be satisfied that one person has been abusive towards the other to whom they are personally connected and that the order is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. Again, it does not matter whether the abusive matter itself took place in England and Wales or elsewhere.
It is possible that an application for a DAPO can be made on an emergency basis (i.e. without telling the other party). Should that happen, the court would give the person against whom the order is made, an opportunity to make representations about the same, as soon as is just and convenient at a further hearing.
The court making a DAPO can attach various conditions to it, for example, that the person against whom the order is made should not contact the other person; it can exclude the abuser from premises or prevent them from entering premises or require them to leave premises. The court can also require the abuser to submit to electronic monitoring. It will be possible when making a DAPO for the court to order abusers to attend certain courses, such as alcohol substance misuse or a domestic violence perpetrator’s course. This is to help them address their behaviour.
A DAPO can last for as long as the court specifies or until the court makes a further order about the matter.
A person who breaches a DAPO commits an offence for which they can be punished on conviction in a Magistrates’ Court. A person who breaches a DAPO can be arrested by the police and brought before the court to be dealt with.
It has long been a complaint of the victims of domestic abuse that in Family Court proceedings (concerning children the parties have together), it has always been possible for the abuser to cross-examine the victim in court. This Act now introduces changes to the practice of the Family Court to stop that from happening. Victims of domestic abuse will therefore no longer be questioned by their abusers in the Family Court. Where cross-examination is prevented, the court must now consider whether there is an alternative means for the cross-examination to take place and, if there is not, then the court will invite the person wishing to cross-examine, to arrange for a qualified legal representative to act for that purpose. Should such representation not be arranged and the court considers it necessary to take place, then the court can appoint a qualified legal representative for that sole purpose. The cost of such representation will be paid for by the State.
Generally speaking, this legislation must be welcomed as it will prevent the victims of domestic abuse being cross-examined by the perpetrators in family proceedings. It also seeks to establish a uniform approach across family, civil and criminal courts as far as DAPO’s are concerned. There has, until now, been a piecemeal approach between the different courts. The legislation also recognises and places in Statute, the changing view of society that domestic abuse is not simply a matter of violence but can take various forms including economic abuse. This is a major step forward.
It remains, of course, to be seen in the current climate when the legislation will be enacted.
If you wish to speak to the author of this article, Family Law Solicitor, Simon Brown, or another member of our Family Law team then please telephone 01892 526344 or email enquiries@berryandlamberts.co.uk.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
