Transforming the response to domestic abuse

Introduction
Resolution’s 6,500 members are family lawyers, mediators and other family justice professionals in England and Wales, committed to a non-adversarial approach to family law and the resolution of family disputes.

Resolution members abide by a Code of Practice which emphasises a constructive and collaborative approach to family problems and encourages solutions that take into account the needs of the whole family and in particular the best interests of any children.

Resolution is committed to developing and promoting best standards in the practice of family law amongst its members and amongst the family law profession in general.

We also campaign for better laws and better support and facilities for families and children undergoing family change.

The preparation of this response was led by Resolution’s Domestic Abuse Committee.

Responses to consultation questions
Introducing a new statutory definition of domestic abuse

1. Do you agree with the proposed approach to the statutory definition?

Agree. Whilst we broadly agree with the general proposed approach, in our view, further consideration should be given to the wording of the new statutory definition as follows:
Including reference to economic and financial abuse;

Including reference to harmful cultural practices, such as, FGM, forced marriage and honour based violence; and

Referring to those “in a family relationship” rather than “family members” to take account of wider relatives.

Any revised definition sends a message but what is most required is the application and enforcement of existing law designed to protect sufferers of domestic abuse.

2. Will the new definition change what your organisation does?

No, it won’t change

3. How can we ensure that the definition is embedded in frontline practice?

Some frontline practitioners work extremely hard to apply the definition. To an extent they, local government and others will take the lead from national government when it comes to properly applying the definition.

Strong governance and awareness raising will assist greatly but in particular there is a lack of awareness and understanding about the power differentials between the abused and the abuser. This can be demonstrated when questions such as “why didn’t you just leave?” are asked.

4. What impact do you think the changes to the age limit in the 2012 domestic abuse definition have had?

Positive

5. We are proposing to maintain the current age limit of 16 years in the statutory definition – do you agree with this approach?

Strongly agree

It is essential that 16 and 17 year olds continue to be included in the statutory definition. People can marry at the age of 16 and set up home. They may be victims of domestic abuse in respect of whom statutory child protection measures and procedures can have limited impact in practice.

Making domestic abuse everybody’s business

6. In addition to the changes being made to how relationship education will be taught in schools, what else can be done to help children and young people learn about positive relationships and educate them about abuse?

Work in schools must tackle difficult issues such as relationships without allowing any exemptions on religious basis. By allowing such exemptions, faith schools are able to avoid lessons about relationships, sex and violence and other difficult issues such as female genital mutilation and forced marriage. It may well be very young people who need this information the most.

Whereas many do fully understand that physical abuse is unacceptable and criminal, many perpetrators feel a sense of entitlement to bully, coerce, control their partners/family members/children. Education and guidance concerning relationships if applied appropriately in schools without any faith exemption would assist this enormously.

7. Which statutory agencies or groups do you think the UK government should focus its efforts on in order to improve the identification of domestic abuse? Please tick the top 3 from the list

It is difficult to pick a top 3 from the list. All those on the list have a role to play including children’s services and legal professionals including the judiciary.

8. In addition to improving training programmes and introducing guidance, what more can the government do to improve statutory agencies’ understanding of domestic abuse?

Third sector NGO frontline domestic abuse services should be directly involved in the training provided. They are often in a position to provide the most expert advice to assist with the understanding of the response to domestic abuse.

9. What further support can we provide to the public (employers, friends, family, community figures) so they can identify abuse and refer victims to help effectively?

There is simply no substitute for direct education.

Improving support services for all victims of domestic abuse and their children

10. We are in the process of identifying priority areas for central government funding on domestic abuse. Which of the following areas do you think the UK government should prioritise? Please select up to 3

i. Therapeutic services to help victims of domestic abuse recover from their experience
ii. Accommodation services
iii. Other – frontline domestic abuse services and refuges

11. What more can the government do to encourage and support effective multiagency working, in order to provide victims with full support and protection? Please select up to 3

i. Guidance
ii. Training
iii. Other – In our members’ experience statutory services, and those who they are seeking to support and protect, benefit greatly from working with and from what they learn from frontline domestic abuse services and their input into protection plans. For example, local authorities should be encouraged to buy in the expertise which they do not have in house.

Supporting victims with specific needs
12. What more can the government do to better support victims who face multiple barriers to accessing support?

We would welcome a move away from focus on the funding of generic services to support for gender specific and specialist domestic violence services best placed to meet the needs of victims with specific, intersectional and complex needs, and avoid the knock on costs of those needs not being met.

Whilst there have been welcome changes to the gateway to private family legal aid since implementation, the government continues to resist accepting the word of the applicant and/or the specialist family law solicitor regularly professionally screening for domestic abuse. This would better meet the needs of victims with multiple problems who may simply not have access to any other form of evidence, for example, who has simply not been able to face reporting the abuse to or been screened for abuse by any of the prescribed evidence providers, but and is therefore
ineligible for private family legal aid, but can be cross-examined by a perpetrator making a Children Act application to further their abuse.

13. How can we work better with female offenders and vulnerable women at risk of offending to identify their domestic abuse earlier? Please select up to 3

No comments

14. How can we make greater use of women-specific services to deliver interventions in safe, women-only environments? Please select top 3

No comments

15. In addition to reviewing who may be eligible for the Destitute Domestic Violence Concession, what other considerations could the government make in respect of protecting domestic abuse victims with no recourse to public funds?

In the interim funding is urgently needed for no recourse beds in refuges for these women.

Proposals to keep victims safe

16. Do you agree that the proposed Domestic Abuse Protection Notice issued by the police should operate in broadly the same way as the existing notice (except that it would also be able to be issued in cases of abuse which do not involve violence or the threat of violence)?

In our view the overriding emphasis in the proposed Domestic Abuse Bill on a criminal/police approach to the issue of domestic abuse ignores the available evidence and is not always helpful.
On balance, our view is that the existing criminal and civil law will provide sufficient protection if properly applied and enforced.

A DAPN could be made in a free standing situation but, like orders, it is only as effective as the police response to its breach and police willingness to enforce.

The placement of conditions on DAPNs is an interesting idea but it is difficult to see how what would amount to infringements on the human rights of the alleged perpetrator could work and there would likely be more not guilty pleas and contested hearings.

It is also difficult to see what this proposal will add to the situation currently on the ground. In our members’ experience, the police are, for whatever reason, extremely reluctant to issue PIN notices, or to deal with breaches of such notices as a breach, whatever the circumstances.

If the definition of domestic abuse is acted upon appropriately then DAPNs should be issued no matter what form the abuse takes. There needs to be a change in the attitude of the police although it is recognised that police resources have severely hampered an effective response to domestic abuse.

17. Which of the following individuals/organisations should be able to apply for a Domestic Abuse Protection Order? Please select all that apply

All apply

18. Which persons or bodies should be specified by regulations as ‘relevant third parties’ who can apply for a Domestic Abuse Protection Order on a victim’s behalf? Please select all that apply

All apply

19. We propose that there should be multiple routes via which an application for a Domestic Abuse Protection Order can be made, including:

at a magistrates’ court by the police following the issue of a Domestic Abuse Protection Notice or at any other time
as a standalone application by, for example, the victim or a person or organisation on the victim’s behalf to a family court
by a party during the course of any family, civil or criminal proceedings

Do you agree?

Yes

Victims have concerns about reporting breaches of orders because they do not wish to criminalise the father of their children. To allow breaches to be punishable by contempt of court in the civil courts is already available for Non Molestation Orders although confusion around the appropriateness of a contempt hearing, where the police have opted not to enforce, would have to be ironed out.

20. Do you agree that family, civil, and criminal courts should be able to make a Domestic Abuse Protection Order of their own volition during the course of any proceedings?

Yes

21. Do you agree that courts should be able to impose positive requirements as well as prohibitions as part of the conditions attached to the proposed order?

Don’t know

Whilst this sounds like a good idea in principle, the reality is that this is likely to fuel litigation as perpetrators are likely to oppose any order which may require them to be tagged, registered or subject to reporting conditions on the basis that these would be a breach of their human rights. The remaining family courts are already struggling to accommodate the listing of private family law applications.

22. Do you agree that courts should be able to require individuals subject to a Domestic Abuse Protection Order to notify personal details to the police?

Yes

In principle. Clare’s Law has not been terribly effective as in reality the vast majority of women going into a violent relationship would be hoping for a better relationship this time and it would not occur to them to ask for disclosure of this kind of information.

23. If so, what personal details should the courts be able to require individuals to provide to the police? Select all that apply

All apply

24. Do you agree that breach of the proposed order should be a criminal offence?

Yes

25. If you do agree that breach of the proposed order should be a criminal offence, should it be possible for breach to alternatively be punished as a contempt of court?

Yes

To allow the victim the maximum options.

26. Do you agree that courts should be given an express power to impose electronic monitoring as a condition of a Domestic Abuse Protection Order?

This could act as a deterrent to women reporting. Further criminalisation of what are essentially family members is rarely what is required by victims. It would be good if they had the choice however. Victims are often reluctant to go to a contested hearing even in the family courts. It is likely that human rights opposition to electronic monitoring could create more contested hearings and more stress for the victims unless a considerable emphasis was placed on special measures.

Electronic monitoring has been piloted in the North East of England and input should be sought from Northumbria Police.

27. Which particular statutory safeguards relating to the use of electronic monitoring with Domestic Abuse Protection Orders should be put in place?

No comments

28. How much easier do you think it will be for domestic abuse victims to register to vote anonymously, once the changes summarised above happen?

Somewhat easier

29. What further support could survivors receive to prove their safety would be at risk if their name and address appeared on the electoral register? Please put forward one suggestion.

No comments

30. Do you have any further comments or suggestions on how to make it easier for domestic abuse survivors to anonymously register to vote?

No comments

31. Aside from anonymous registration, how else can we keep victims’ addresses safe?

We suggest that the provisions in the benefits system require further consideration as it is more difficult to obtain anonymity than perceived.

32. Before reading this consultation, were you aware of the Domestic Violence Disclosure Scheme (Clare’s Law)?

Yes

33. Do you agree the guidance underpinning the DVDS should be placed on a statutory footing?

Neither agree nor disagree

34. How do you think we can best promote awareness of the Domestic Violence Disclosure scheme amongst the public?

All apply

Other – Education in schools with no faith exemptions allowed.

Forms of domestic abuse

35. What practical barriers do domestic abuse victims face in escaping or recovering from economic abuse and how could these be overcome?

This is obviously non-physical abuse which can be hard to evidence. Victims of this form of abuse are typically victims of many forms of abuse, many are isolated. There is little effective training to assist frontline responders to identify and address it. Whilst evidence of financial abuse as a standalone form of abuse is not automatically accepted by the Legal Aid Agency but is discretionary (for the purposes of eligibility for private family legal aid), it is hard to see how this can ever be treated as a significant and harmful form of abuse without cross government cooperation.

36. What more can we do to tackle domestic abuse which is perpetrated online, or through control of technology?

All apply

Improving the police response

37. How can we continue to encourage and support improvements in the policing response to domestic abuse across all forces and improve outcomes for victims?

Police training must involve the expert services, including non-statutory, on the ground.

The police need to be supported to gain a better understanding of cultural awareness where appropriate; and about the behaviour of perpetrators before charging a woman with abusing her partner or ex-partner.

Improving victims’ experience of the justice system

38. Do you think creating a legislative assumption that all domestic abuse victims are to be treated as eligible for assistance on the grounds of fear and distress (if the victim wants such assistance), will support more victims to give evidence?

Yes

39. Is there more this government could do to explain the range and remit of existing measures for victims to help support them in the criminal justice process?

Don’t know/no answer

40. Do you know of instances in criminal proceedings when an application to prevent cross-examination of a victim by an unrepresented defendant has been denied in a domestic abuse case? Where possible, please provide evidence or details of the experience to support your answer.

Don’t know/no answer

41. Do you think extending the prohibition on cross-examination in criminal proceedings would support more domestic abuse victims to give evidence?

Don’t know/no answer

42. Do you have suggestions for how we can better support prosecutions through to conclusion, including providing better support for witnesses who currently disengage from the process? Where possible, please provide evidence or details of the experience to support your answer.

Don’t know/no answer

43. What more can police, witness care units and the Crown Prosecution Service do to support victims through the justice process from the point of report onwards? Where possible, please provide evidence or details of the experience to support your answer.

No comments

44. Are there other aspects of the criminal court treatment of vulnerable people which the family court could learn from?

Yes

As the government is well aware, there are parties (who may be unrepresented themselves) appearing in the family court and being cross-examined by their alleged perpetrator which can raise serious issues for the parties and the courts. The judge may prevent direct questioning, but the process is only longer and more difficult for all those involved in the absence of an advocate for the perpetrator for these purposes. The family courts make decisions which often have life-long consequences for the children involved and need the best evidence possible to provide a safe, lasting and satisfactory outcome for the child. Legislation should be brought forward to prevent cross-examination of parties by alleged abusers in the family courts while ensuring justice is done to all parties (as in the Youth Justice and Criminal Evidence Act 1999).

It is unacceptable that there is still no clear timetable to introduce the urgently needed legislation to allow family court judges to prevent perpetrators of abuse (alleged or otherwise) from cross-examining their victims in person, including to support Practice Direction 12J – Child arrangements and contact orders : Domestic abuse and harm. It is unclear why the proposed Domestic Abuse Bill will not contain similar provisions to those published in the Prison and Courts Bill 2016-17 further to the Ministry of Justice’s 2017 report on Alleged perpetrators of abuse as litigants in
person in private family law.

Although there have been changes to the Family Procedure Rules further to the 2015 Final Report of the Vulnerable Witnesses and Children Working Group headed by Hayden J and Russell J, it is widely recognised that current special measures facilities in the family courts, such as video and audio link and screen facilities , are not satisfactory or on a par with those facilities available in the criminal courts. In our members’ experience, it can also be challenging to secure funding for intermediaries to assist vulnerable or intimidated witnesses.

Special measures for children and vulnerable adults in family proceedings should not be subject to availability – if the court considers they are necessary, they should be provided, especially in the context of a reduced and improved court estate. For example, facilities for vulnerable and intimidated witnesses to provide video evidence from a safe and anonymous place directly into family court proceedings need to be available.

Under the ongoing court closures programme, some people will be forced to travel further to courts, at extra cost, to seek protection in the family courts and access measures and facilities for vulnerable witnesses. It is very important that with the intended reduced number of family courts that, in those that will remain in operation, a process of modernisation is urgently carried out in order to provide full and suitable facilities for vulnerable witnesses.

Family court staff, especially every new joiner, would benefit from training to improve awareness of the needs of victims and “joined up thinking for them”. For example, passing on and acting on solicitor correspondence requesting a separate room in advance of a return date for an injunction hearing so that a victim will not be sitting in the general waiting area with their alleged or proven perpetrator; thinking about checking who an unaccompanied court user is before asking them to vacate a waiting room allocated to them to keep them safe.

Prosecuting domestic abuse

45. Do you think there is further action the government could take to strengthen the effectiveness of the controlling or coercive behaviour offence?

Yes

With training of all statutory services, albeit recognising the reluctance of women to report for fear of criminalising family members, particularly the father of their children.

46. Do you think the current approach of using sentencing guidelines, as per guidelines issued in February 2018 is effective in ensuring sentences imposed reflect the seriousness of domestic abuse when it involves children?

Don’t know/no answer

47. Is a statutory aggravating factor needed in order for the court to reflect the seriousness of offences involving domestic abuse and children in sentencing?

Don’t know/no answer

48. Please share any other views on how to ensure domestic abuse and its impact on children are taken into account in sentencing?

No comments

49. Do you agree that taking extraterritorial jurisdiction over these offences is sufficient to satisfy the requirements of the Convention?

50. If not, what additional offences do you think we should take extraterritorial jurisdiction over and why?

Dual criminality is an important feature of the Convention. It should be extended to trafficking, including domestic trafficking by marriage, and to address the needs of ‘disposable women’ – the disposing of unwanted wives abroad whilst their children remain with the abuser in the UK (see Southall Black Sisters 2017 research).

51. Do you agree that relying on the civil law remedy in the Protection from Harassment Act 1997 is sufficient to satisfy the sexual harassment requirements of the Convention?

52. If not, what do you think is necessary to satisfy those requirements?

In theory stalking and harassment are currently covered under the Protection from Harassment Act 1997, the Offences Against the Person Act 1861 and the Sexual Offences Act 2003 (to which could be added the Malicious Communications Act 1988) but the dearth in prosecutions calls into question the efficacy of the legislation and whether a specific offence of sexual harassment and stalking should be introduced.

The 1997 Act is so underused it is hard to see how this could satisfy the Convention. In practice it is difficult to secure legal aid funding for an application – the approach to such funding will require review as part of the consideration of whether reliance on that civil law remedy is sufficient.

Consideration should be given to making an amendment to strengthen the PHA 1997 by providing that conduct on one occasion or more can amount to harassment.

Preventing reoffending

53. Do you agree we should explore (with the Crown Prosecution Service) further controlled and monitored use of conditional cautions with rehabilitation programmes than is currently permitted for lower-level, normally first time domestic abuse incidents?

• If yes, please explain your answer, suggesting what procedures should be in place to ensure a conditional caution would only be given in appropriate cases with appropriate conditions attached
• If no, please explain your answer

Yes

We query whether conditional cautioning should ever be used in offences of domestic abuse because it downgrades what amounts to very often serious offending. It would be better, particularly where children are involved, to use and support the fact finding mechanism of the family court so that both the victim and her children are protected.

54. Do you have any additional evidence on current conditional caution practice which we should consider in relation to this issue?

55. What changes to current policies or procedures would help police and other agencies to better manage serial and repeat abusers, in particular those who are not subject to a sentence of the court. This can include how best to:

• risk assess an abuser and plan for risk reduction
• engage an abuser in order to encourage compliance with control measures

No comments

56. What more could be done to work with perpetrators in prisons, particularly offenders who receive a sentence of less than 12 months and do not have sufficient time to complete a domestic abuse programme in custody? We are interested to hear of particular examples of practice which have been successful.

Perpetrator programmes must be critically examined for long term success rates.

We are unaware of any evidence as to their efficacy in the short, medium or longer term. If they were to be scrutinised and improvements made, then release of perpetrators from prison could be conditional upon their completion with a recall to prison if they fail to attend.

57. What more could be done to work with perpetrators in the community (convicted or non-convicted) to change their behaviour? We are interested to hear of particular examples of practice which have been successful.

We suggest that more in-depth research about whether perpetrator programmes are effective is required.

Improving performance using data

58. Please select which of the following you believe should be priorities for improving data collection. Please choose up to 3
i. Improving the collection and reporting of data on when domestic abuse is a feature of a case/intervention
ii. Linking data to enable better tracking of interventions and reoffending
iii. Linking data to enable better understanding of the interactions/relationships between domestic abuse and other types of offending (including child abuse)

Establish a Domestic Abuse Commissioner in law

59. Do you agree with the proposed model for a Domestic Abuse Commissioner outlined above?

Strongly agree

60. Of the proposed powers and resources, which do you consider to be the most important for a Domestic Abuse Commissioner? Please choose up to 3

i. Oversee the Domestic Homicide Review Quality Assurance process, including any potential changes implemented following this consultation, feeding lessons learned into their recommendations
ii. Publish findings in reports, which will be laid before Parliament
iii. Require local statutory agencies to cooperate and provide information

61. Question for public bodies only: What would be the practical implications of complying with the proposed Domestic Abuse Commissioner’s powers?

N/A

Learning from DHRs

62. One proposal is that the Domestic Abuse Commissioner could routinely collate, quality assure and share lessons learnt from DHRs. What more could be done to increase awareness of the learning from DHRs?

Practice Direction 12J – Child arrangements and contact orders : Domestic abuse and harm needs to be supported by resources on the ground or there will be an ineffective response to DHRs regardless of PD 12J.

63. How can areas best hold their own local agencies to account in terms of monitoring delivery against DHR action plans?

The appointment of local/assistant Domestic Abuse Commissioners could assist.

Sharing best practice across government

64. How can the government better share and promote effective practice on domestic abuse across all public services both in regard to commissioning and delivery of services?

Government must make clear across the board the reality of the nature of domestic abuse which is often long term and chronic and unlikely to be resolved by one ‘short term fix’ with remedies to reflect that.

Guidance to support primary and secondary legislation should be published at the same time as the legislation comes into force. The failure to publish guidance until over 12 months after commencement of the Forced Marriage (Civil Protection) Act 2007 resulted in a lot of applications being made by the police wrongly as RTPs and caused much confusion.

Although various welcome improvements have been made to the domestic violence evidence gateway to family legal aid, the delivery of protective services for victims of abuse would be enhanced by addressing other aspects of the legal aid system, including the CCMS system which creates significant barriers and delays around the processing of their applications for legal aid and being able to take steps for their children; and the treatment of for example of ‘ sofa surfing at a friend’s home’ as a second residence for the purposes of assessing a capital contribution.

65. What role should local areas play in sharing good practice?

Any domestic abuse commission should include a local panel including those with a real expertise on the ground, namely non- statutory domestic abuse frontline caseworkers.