In January 2019, the government introduced the Domestic Abuse Bill 2017-19 following a consultation on transforming the response to domestic abuse. This bill failed to gain Royal Assent before the end of the 2017/19 parliamentary session.
The legislation was reintroduced in March 2020 as the Domestic Abuse Bill 2019-21.
We welcome the government’s commitment to tackling domestic abuse, represented by the draft bill.
The bill would:
- create a statutory definition of domestic abuse
- establish the office of Domestic Abuse Commissioner
- prohibit offenders from cross-examining their victims in person in the family courts
- create a domestic abuse protection notice (DAPN) and domestic abuse protection order (DAPO)
- provide a statutory basis for the Domestic Violence Disclosure Scheme (Clare’s law) guidance
- create a new domestic abuse offence in Northern Ireland to criminalise controlling or coercive behaviour
- create a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal courts
- enable domestic abuse offenders to be subject to polygraph testing as a licence condition following release from custody
- place a duty on local authorities to give support to victims of domestic abuse and their children in refuges and safe accommodation
- require local authorities to grant new secure tenancies to social tenants leaving existing secure tenancies for reasons connected with domestic abuse
- extend the extra-territorial jurisdiction of the criminal courts of England and Wales, Scotland and Northern Ireland to further violent and sexual offences
The bill would create a statutory definition of domestic abuse based on the existing cross-government definition.
‘Abusive behaviour’ is defined in the bill as any of the following:
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse
For the definition to apply, both parties must be aged 16 or over and ‘personally connected’.
‘Personally connected’ is defined in the bill as parties who:
- are married to each other
- are civil partners of each other
- have agreed to marry one another (whether or not the agreement has been terminated)
- have entered into a civil partnership agreement (whether or not the agreement has been terminated)
- are or have been in an intimate personal relationship with each other
- have, or there has been a time when they each have had, a parental relationship in relation to the same child
- are relatives
Read the government’s statutory definition of domestic abuse factsheet
Under the bill, the government must appoint and fund the office of independent Domestic Abuse Commissioner responsible for:
- representing victims and survivors
- educating the public about domestic abuse
- monitoring the response of local authorities, the justice system and other statutory agencies
- holding statutory bodies to account in tackling domestic abuse
The commissioner would have the power to hold statutory bodies and government to account and recommend how they can improve the response to abuse.
The bill would place a duty on certain public bodies and government ministers to cooperate with the commissioner and to respond to each recommendation within 56 days.
The bill would prohibit offenders from cross-examining their victims in person in the family courts.
There would be an automatic ban on cross-examination in person where:
- one of the parties has been convicted of, given a caution for, or charged with certain offences against the other
- an on-notice protective injunction is in place between the parties
- there's ‘other evidence’ of domestic abuse perpetrated by one party against another
The government has said that it will specify the offences and evidence of abuse required for this automatic ban in later regulations.
The bill will give the court powers to:
- prohibit cross-examination in person where likely to either diminish the quality of the witness’s evidence or cause significant distress to the witness
- appoint a legal representative to carry out cross-examination on behalf of a party who is prohibited from cross-examining the witness in person
The government has said that this court-appointed representative will be funded centrally.
Read the government’s cross-examination in the family courts factsheet
The bill introduces two new civil protection injunctions:
- a domestic abuse protection notice (DAPN) – for immediate protection following an incident
- a domestic abuse protection order (DAPO) – flexible, longer-term protection for victims
These new injunctions are based upon the existing domestic violence protection notice (DVPN) and domestic violence protection order (DVPO).
DAPNs
A DAPN could provide that the accused party may not:
- contact the person for whose protection the notice is given
- come within a specified distance of any premises in England or Wales in which that person lives
- evict, exclude, prohibit from entering or require leaving that person from the premises (if they live together)
It could be issued by law enforcement against a party in response to a domestic abuse incident where there are reasonable grounds to believe that:
- the party has been abusive towards a person aged 16 or over to whom the party is personally connected
- it's necessary to give the notice to protect that person from domestic abuse, or the risk of domestic abuse, carried out by the party
DAPOs
Under the bill, a DAPO could be used to prevent a party from being abusive to another person aged 16 or over to whom they are personally connected by:
- prohibiting the party from doing things described in the order, and/or
- requiring the party to do things described in the order
The conditions in a DAPO could be varied over time by the courts and would be able to cover positive and/or negative requirements. For example, a DAPO could:
- prohibit any form of contact between the parties
- require the party to be assessed for suitability for a substance misuse programme
Under the bill, a DAPO could be applied for in different courts by:
- victims
- law enforcement
- other third parties specified in the legislation
The courts would also be able to make a DAPO during existing court proceedings.
A court can make a DAPO where it’s satisfied that:
- on the balance of probabilities, the party has been abusive towards a person aged 16 or over to whom the party is personally connected
- the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by the party
The bill would create a statutory basis for the Domestic Violence Disclosure Scheme guidance. This places duties on law enforcement agencies, such as the police.
Under the scheme, an individual or third party can ask law enforcement to check whether a current or former partner has a violent or abusive past.
Law enforcement should consider disclosing the information if records show that the individual may be at risk of domestic abuse.
Law enforcement may also make a disclosure to an individual if they receive information (for example, through a criminal investigation or from a third sector agency) about the violent or abusive behaviour of a person that may impact on the safety of that person’s current or ex-partner.
Any disclosure made by law enforcement must be:
- reasonable
- proportionate
- based on a credible risk of harm
Read the government’s Domestic Violence Disclosure Scheme factsheet
The bill would create a statutory presumption that victims of domestic abuse are automatically eligible for special measures in the criminal courts on the grounds of fear or distress.
A party would be automatically eligible whenever an allegation is made that the behaviour of the other party falls within the definition of ‘domestic abuse’ set out in the bill.
Under special measures, witnesses could give evidence, for example:
- in private
- using a live video link
- from behind a screen
Currently, special measures are only provided in the criminal courts when there is a belief that the quality of the witness’s evidence is likely to be diminished due to their fear or distress about testifying.
Victims will not have to satisfy the fear or distress test to be eligible for special measures.
It will remain a matter for the court to decide which (if any) of the measures would be appropriate.
The bill requires local authorities to grant a new lifetime tenancy to a tenant or a member of their household when re-housing an existing lifetime social tenant or offering an existing lifetime social tenant a new sole tenancy in their home if it’s satisfied that the:
- tenant or a member of their household has been a victim of domestic abuse
- new tenancy is granted in connection with the abuse
The bill would also place a duty on tier one local authorities in England to provide support victims of abuse and their children living in:
- a refuge
- specialist safe accommodation
- dispersed accommodation
- sanctuary schemes
- second stage accommodation
Tier one local authorities include county councils, the Greater London Authority, and metropolitan and unitary authorities.
Under the duty, local authorities must provide domestic abuse support. This includes:
- support for children
- counselling and therapy
- housing-related advice and support
- communicating with other health and social care providers
- specialist support for victims with complex needs and/or protected characteristics
- helping victims to recognise the signs of abusive relationships to prevent re-victimisation
Read the government’s secure tenancies factsheet
Read the government’s statutory duties on accommodation-based services factsheet
The bill would extend the courts’ extra-territorial jurisdiction to prosecute ‘certain violent and sexual offences’ committed outside the UK by either:
- a UK national
- a person habitually resident in England and Wales
If a party is not prosecuted in the jurisdiction where the offence took place, a prosecution could take place in the UK if:
- if the party is physically present in this jurisdiction (following extradition if necessary)
- there’s enough evidence to provide a realistic prospect of conviction
- it’s in the public interest to prosecute
Read the government’s extraterritorial jurisdiction factsheet
Our view
We welcome the government’s commitment to tackling domestic abuse, represented by their reintroduction of the Domestic Abuse Bill.
We’re concerned at reports of an increase in the number of domestic abuse cases arising throughout the coronavirus (COVID-19) pandemic, and believe it’s vital that the justice system is equipped to tackle such cases.
We welcome:
- the appointment of a Domestic Abuse Commissioner, Nicole Jacobs, to the role ahead of the bill’s passage
- the inclusion of ‘economic abuse’ into the statutory definition of domestic abuse
- the inclusion of children aged 16 and 17
- measures to prohibit the cross-examination of domestic abuse victims by their perpetrators
However, legislation alone is not enough. Services for victims of domestic abuse must be properly funded.
Any proposals made within new domestic abuse legislation must also be supported by a full programme of education.
Our priorities for the Domestic Abuse Bill
Cross-examination
We welcome steps to prohibit the cross-examination of victims of domestic abuse by their alleged abusers.
We encourage the government to extend this provision to include examination-in-chief.
Funding for services
We believe that further funding is required for domestic abuse services and other vital public services in order to adequately tackle this issue, particularly given the increase in cases as a result of coronavirus.
Availability of legal advice and support
We encourage the government to make sure that victims of domestic abuse can access legal advice and support.
The legal aid means test is preventing many living in poverty from accessing justice.
What this means for solicitors
Until the bill is passed, there will be no practical change for solicitors practising in this area of law.
We'll provide updates on the bill's passage through Parliament below.
What we’re doing
- July 2020 – the bill was voted through the House of Commons and will be debated in the House of Lords
- April 2020 – we briefed MPs on our priorities and concerns ahead of the bill's second reading in the House of Commons
- March 2020 – we welcomed the introduction of the Domestic Abuse Bill 2019-21 to Parliament for its first reading
- November 2019 – Parliament was dissolved and all unfinished parliamentary business (including the Domestic Abuse Bill) fell
- October 2019 – we welcomed the return of the bill to Parliament
- September 2019 – the 2017-19 bill failed to gain Royal Assent before the end of the parliamentary session
- March 2019 – we called for the government to support any domestic abuse legislation by increasing funding for legal aid, support services and policy
- January 2019 – the government responded to the consultation and published the draft Domestic Abuse Bill 2017-19
- September 2018 – we published research on the impact of legal aid capital and contribution thresholds for victims of domestic violence
- June 2018 – we responded to the government’s consultation on transforming the response to domestic abuse
- March 2018 – the government consulted on proposals for a draft domestic abuse bill
