Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘domestic abuse

Domestic Abuse Bill 2020 goes to the Lords: Integrated Domestic Abuse Courts pilot announced

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Reforms in the ways in which cases involving domestic abuse are to be handled is another area of the current Government’s policy programme that is still being taken forward despite all the media attention on dealing with the Covid-19 pandemic. (There is of course a link in that reports of incidents of domestic abuse have risen substantially as a side effect of people being placed in lockdown as the first response to attempting to limit the impact of the pandemic.)

The Domestic Abuse Bill 2020 (noted in this blog (21 May 2020) has completed its journey through the House of Commons  on 6 July 2020. It has now been sent to the House of Lords where is received its formal first reading in the Lords the following day.

In my earlier blog I set out the primary objectives of the new bill, so will not repeat them here. There are, however, still concerns about the scope of the bill. In particular, it is argued that people with unsettled immigration status (who are not permitted to have access to services provided through public funding) will remain at particular risk, despite the overall improvements to the system which will be introduced when the Bill becomes law. There are also concerns that levels of funding needed to ensure that services can be provided to the victisms of domestic violence and abuse will not be as generous as they should be.

Another development, which builds on the prospective changes in the Bill, was announced on 25 June 2020 when the Government published Assessing Risk of Harm to Children and Parents in Private Law Children Cases. This was the report of an independent study, led by three leading family law academics, supported by 10 panel members drawn from the Ministry of Justice, the judiciary, social work, womens’ aid and Respect. Commissioned by the Ministry of Justice, the report examined the experience of participants in private law children’s cases. (These are cases in which the parents of children take proceedings in order to determine arrangements relating to the custody of children.)

It consists of two significant documents:

  • the analysis of responses to a widespread consulation on the issue;
  • a detailed review of the existing published research on the issue.

The key issues that emerged from the consultation responses were:

  • a feeling that abuse is systematically minimised,
  • children’s voices not being heard,
  • allegations being ignored, dismissed or disbelieved,
  • inadequate assessment of risk,
  • traumatic court processes,
  • perceived unsafe child arrangements, and
  • abusers exercising continued control through repeat litigation and the threat of repeat litigation.

These issues were underpinned by the following key themes in the evidence that was reviewed:

Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self-representation, with little or no involvement of the child.

A substantial list of recommendations was made to address these issues. The first of these related to the basic design principles for private law children’s proceedings. The panel stated that these principles should be:

  • A culture of safety and protection from harm
  • An approach which is investigative and problem solving
  • Resources which are sufficient and used more productively
  • With a more coordinated approach between the different parts of the system

Responding to the recommendations, the Government has announced an Implementation Plan. From a legal system perspective, the key decision is to start a pilot project of the ‘Integrated Domestic Abuse Court’.

Two different models will be tested and evaluated:

1. A ‘one family one judge’ approach in which certain concurrent family and criminal proceedings involving domestic abuse are heard by the same cross-ticketed judge, with the aim of reducing the need for victims to re-tell their stories and promoting a more joined up approach to the handling of such cases between the jurisdictions.

2. An ‘investigative’ approach to the family courts. This will explore ways to move away from the current ‘adversarial’ system to adopt … a more investigative approach [which] will focus on ways to improve gathering and assessing appropriate evidence. Specific emphasis will be placed on ensuring the voice of the child is heard effectively. [The Government] will seek to tackle problems more effectively through the better provision and signposting of support services, while a review stage during the pilot will aim to increase long term sustainability and reduce returns to court.

The Government intends to adopt a phased approach to both pilots. The first phase will involve a period of designing and small-scale trialling of potential solutions to aspects of the detailed pilot. This would be followed by the second phase, the full pilot of both approaches, the design of which will take account of the trial findings from the first phase.

The Covid-19 pandemic presents particular challenges to the immediate launch of this pilot. Both the family and criminal courts have had to alter drastically the way in which cases are processed at this time, and the results of any pilot undertaken in such circumstances are likely to be less representative and informative than they would usually be. In addition, courts and practitioners are under considerable pressure to ensure that as many cases as possible are heard at this time.

The Government therefore needs to keep the start date of the pilot under review dependent on the duration and impact of Covid-19, but will commence it as soon as it is practical and safe to do so. The Government will work with a range of stakeholders to develop the pilot plans further, and then publish additional information and a start date for Phase 1 as soon as the current situation permits.

For the version of the Domestic Abuse Bill which has gone to the House of Lords, see https://services.parliament.uk/Bills/2019-21/domesticabuse.html

For the reports of the study Assessing Risk of Harm to Children and Parents in Private Law Children Cases, see https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history

The Implementation is also available at https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history

 

 

 

Domestic Abuse Bill 2020

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The problem of domestic abuse has slowly risen up the political agenda over the past few years. For far too long regarded it was regarded as essentially a private matter in which public authorities, in particular the police, were often reluctant to act. However, the indefatigable work of charitable organisations, such as Refuge, have done much to change the minds of policymakers. And it was an issue which the former Prime Minister Theresa May took particularly seriously.

Over the last 2 and a half years, there have been a series of steps leading to reform of the law. 

1. A Consultation Paper, setting out proposed changes to the law, was published in March 2018. This identified 4 objectives for change:

  • promoting awareness – to  raise public and professional awareness
  • protection and support – to enhance the safety of victims and the support that they receive
  • transforming the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
  • improving performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.

2. The consultation was followed by a draft Domestic Abuse Bill in March 2019 which was considered by a Joint Committee of the House of Commons and House of Lords. It set out the following issues which required legislative change. They are:

  • creation of a statutory definition of domestic abuse;
  • establishment of the office of Domestic Abuse Commissioner, and setting out the commissioner’s functions and powers;
  • providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
  • prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
  • creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
  • enabling high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
  • placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
  • ensuring that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
  • extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

3. The consultation on the Draft Bill was concluded in July 2019, and a Domestic Abuse Bill was introduced into Parliament on the same day. However, it fell when the December 2019 General Election was called.

4. In March 2020, a revised Domestic Abuse Bill was published which is now proceeding through Parliament. It is largely the same as the 2019 Bill though a number of proposed clauses have been strengthened. For example, the powers of the Courts to protect victims from being cross-examined by abusers have been enlarged.

The timetable for the Bill provides that it should have passed through the Commons by the end of June 2020. It is likely to have passed the Lords and be given Royal Assent sometime in the Autumn of 2020.

Although I have not linked this initiative directly to Covid 19, as I have done in a number of other blog items, there is a clear link between the two since one of the well-publicised consequences of the Covid-19 lockdown has been a sharp increase in the numbers of people seeking help to protect them from domestic abuse.

I will update the blog on this issue after the Bill becomes law.

For the work of Refuge, see https://www.refuge.org.uk/

A press release relating to the 2020 Bill is at https://www.gov.uk/government/collections/domestic-abuse-bill

Further documents relating to the Bill are at https://services.parliament.uk/bills/2019-21/domesticabuse.html

 

 

 

 

 

 

Written by lwtmp

May 21, 2020 at 12:30 pm

Dealing with domestic abuse: draft Bill published

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Given all the time and attention devoted to Brexit, it is perhaps not surprising that other important policy initiatives have not been achieving the publicity they deserve. A good example of this was the publication, in January 2019, of a draft Domestic Abuse Bill.

Domestic abuse is a cruel and complex crime that can affect anyone. It leaves physical and emotional scars that can last a lifetime. It also places a considerable demand on public services. Home Office research estimates the economic and social costs of domestic abuse to society to be £66 billion for victims in 2016 to 2017.

A consultation, launched in March 2018  asked questions on how policy should develop to achieve 4 main objectives:

  • promote awareness – to  raise public and professional awareness
  • protect and support – to enhance the safety of victims and the support that they receive
  • transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
  • improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.

Following the consultation, the Government has defined 9 measures that require legislative change – which is the focus of the draft Bill. They are:

  • create a statutory definition of domestic abuse
  • establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers
  • provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
  • prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress
  • create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts
  • enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
  • place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
  • ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy
  • extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

As the Bill has been published in draft, it is unlikely to become law until 2020 at the earliest.

For further detail see https://www.gov.uk/government/publications/domestic-abuse-consultation-response-and-draft-bill

The Home Office research is at https://www.gov.uk/government/publications/the-economic-and-social-costs-of-domestic-abuse

Information on the Domestic Violence Disclosure Scheme and related guidance (which was updated in December 2016) is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf

 

 

Written by lwtmp

March 15, 2019 at 10:27 am