Protecting victim survivors of domestic abuse – best practice

by Katy Duff, Rebecca Christie, Elaine Richardson

Support for the vulnerable is a thread that runs through Resolution’s work and our Vision for Family Justice. We’ve asked our domestic abuse committee to share their thoughts on what members should keep in mind in everyday practice.

Domestic abuse is prevalent and affects families from all walks of life. Dealing with domestic abuse is therefore a normal feature for all family justice professionals and it’s imperative that Resolution members are confident of best practice in this area of work. In this issue, we want to set out a reminder of what domestic abuse is, what it can look like, and how the recent FPR changes affect victim survivors of domestic abuse.

What is domestic abuse?

The Domestic Abuse Act (DAA) 2021 sets out the much-needed statutory definition of abuse which moves away from language around domestic violence. It does so in recognition of the many forms and often subtle iterations abuse can take beyond the physical. The act reminds us that conduct of any nature with a purpose to dominate, intimidate or isolate an individual signals that abuse is present whether this is a single incident or a ‘course of conduct’. This is especially key when considering controlling and coercive behaviour which must be understood in the context of a specific relationship and its dynamics.

A reminder of the definition, DAA 2021 s1:

…

(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—

(a) A and B are each aged 16 or over and are personally connected to each other, and

(b) the behaviour is abusive.

(3) Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

…

A reminder too that PD12J provides a helpful definition of coercive and controlling behaviour to be read alongside the act as follows:

  • coercive behaviour means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.
  • controlling behaviour means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

We must remain alive to these issues when working with all clients. Returning to the abuse definition itself is always helpful to prompt yourself to think beyond the immediate and question if other behaviours have been at play which a client might not have yet understood as abusive. Domestic abuse should no longer be thought of as an area of practice specific only to a certain “type of client”. We should always assess whether abuse has been at play because it is key to understanding better the outcomes our clients want and the help they need from us to achieve them.

What are the recent Family Procedure Rule changes and how do they apply to domestic abuse?

The new Family Procedure Rules (FPR) strengthen the requirement for every case to be considered for resolution away from court where it is safe, appropriate and possible.

This is a 9-point summary of the new rules, in no particular order:

  1. There is clarification of the definition of NCDR which reads “NCDR refers to non-court dispute resolution and means methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.
  2. There is welcome clarification that the new rules align with the Domestic Abuse Act 2021 by changing all references in the court forms to “domestic abuse” (replacing the term “domestic violence”).
  3. The relevant wording on the court forms C100 and Form A is changed so that NCDR is specified, together with the references to mediation. The door is left open to return to NCDR and there is a new reason as an option for the mediator to complete which states “the applicant considers that there is a need to make a court application in parallel” with an NCDR process.
  4. There will be court scrutiny of Mediation Information and Assessment Meeting (MIAM) attendance or exemption claimed and there will be court scrutiny of NCDR activity throughout.
  5. There will be fewer reasons not to attend a MIAM.
  6. Evidence will be needed for MIAM exemptions claimed.
  7. The “natural” gaps in court hearings will be used for judicial nudging into a MIAM or NCDR.
  8. There will be beefed up cost orders in financial proceedings for failure to consider attending a MIAM or participating in NCDR.
  9. There are new court forms – the page to be signed by an accredited mediator in Form C100 and in Form A has been updated and there is a new form FM5 called a “Statement of Position on non-court dispute resolution”.

In practice this means that there is no major change from the stringent (must do) MIAM standards introduced in October 2022, which align with the new Family Procedure Rules, and all authorised mediators should be fully conversant with those standards.

The exemptions to attending a MIAM remain for child protection concerns and domestic abuse, as do the detailed provisions for the evidence required to support each exemption. Under the new FPR evidence is added to include:

  • a Domestic Abuse Protection Notice given under section 22 of the DAA 2021 against a prospective party.
  • a letter by an independent domestic abuse organisation confirming that they are providing, “or have provided” support to a prospective party.
  • A Home Office official can now confirm a prospective party has been granted leave to remain based on “domestic abuse” instead of a definition under immigration rules.
  • An appropriate health professional can now provide an examination by telephone or by video conferencing, as well as in person.

What should members consider when they’re talking to clients about the options available?

Domestic Abuse remains an exemption to participating in NCDR and there is no intention in these rule changes to force domestic abuse victim survivors into out of court dispute resolution. The court process should afford protection for victims of domestic abuse through separate waiting rooms, screens, and of course the presence of lawyers and a judge.

As members of Resolution, we should be sensitive and alert to the fact that with the introduction of the new rules, victim survivors of domestic abuse may feel more than ever judged and pressurised by the family court to use a form of NCDR when it might not be safe and put them at risk of further harm. You have a role to play in helping the court to always have in mind what may be unsafe or inappropriate.

Resolution members should all learn to recognise the signs of someone suffering from trauma. Some forms of abusive behaviour, such as emotional or financial abuse, can be difficult to spot as they are not overt. We must move away from the historic practice of only “screening” for domestic abuse at the beginning of a case and instead have domestic abuse front of mind throughout. Members need to be aware that by virtue of any abuse victims have suffered, they often feel unable to self-report and/or are sometimes unaware of the extent to which their ex-partner’s behaviour has affected their ability to promote their own best interests. For example, victims who don’t recognise that they have been abused might try to pursue NCDR options which might place them at risk of further harm. It’s essential to structure questions sensitively so that victim survivors are well supported and that you are able to elicit the necessary evidence required for MIAM exemption etc.

What next…

We recommend that Resolution members access our huge range of resources and training about domestic abuse including:

As members will know, the experience of sorting out separation and divorce via the family court can be incredibly traumatising, especially for victim survivors of domestic abuse. Resolution continues to work with HMCTS, MoJ and with partners in the sector to make family courts safe places for vulnerable clients to be protected from further harm. You can read more about this in our Vision for Family Justice here, including our work on the QLR scheme and improving family legal aid.

Additionally, given the length of court delays and the acknowledgement that the court process or the threat of it can perpetuate abuse, Resolution is keen to facilitate innovative discussion about whether and how victim survivors of domestic abuse could be safely supported to sort out separation and divorce out of court – this was the subject of our October Family Practice conference and we will write more about it in a future issue of The Review.

The Domestic Abuse committee has in the past year made links with expert organisations such as Rights of Women, Southall Black Sisters and Safe Lives to make sure that Resolution’s work in this area is intersectional and diverse in its perspective and approach. The committee will share the invaluable insight of these organisations in upcoming issues of The Review – watch this space.

kathrynduff@burgessmee.com

rchristie@fladgate.com

elaine@richardsonfl.com