As the Home Office gets involved in the government’s plans to tackle domestic abuse, David Burrows considers the terms of the current consultation and looks back over the somewhat uneven history of dealing with the problem since the 1970s.

Transforming society’s response to domestic abuse

A domestic abuse Bill may finally be in prospect. A year ago the proposals of the then Secretary of State of Justice (Mrs Truss) to protect complainants of domestic abuse from direct questioning by their alleged abusers, saw light in Prison and Courts Bill cl 47, but that was lost in the June 2017 election. Now the topic has been revived with a consultation paper by the Home Office.

The consultation looks at the subject as widely as possible. Its introduction (trailed in last year’s Queen’s speech) makes the point that, of all abuse, domestic abuse is the worst: “it is carried out by those who are supposedly closest to the victims”. (Unfortunately the report is marred by continued use of the word “victim” where nothing has yet been proved. Much better to say “complainant” or, as in family courts, “applicant”: guilt or not remains an open question.)

The introduction to the report goes on:

‘This government is committed to doing everything we can to end domestic abuse. To achieve this we need to build a society that has zero tolerance towards domestic abuse and actively empowers victims, communities and professionals to confront and challenge it. We are determined to ensure victims feel safe and supported, both to seek help and to rebuild their lives.’

The consultation document, ‘Transforming the Response to Domestic Abuse’, 8 March 2018 , asks for responses by 31 May 2018.

So in legislative and case law terms, how did we get here; and where might we be going? What are some thought for the lawyer on the consultation paper? It is part 3, on to ‘Pursue and Deter Perpetrators”, which will be of interest to lawyers – family and criminal alike.

Domestic Violence and Matrimonial Proceedings Act 1976

For the family lawyer the position in 2018 is represented by Family Law Act 1996 (FLA 1996) Pt 4. This post looks at how we have got to the legal position we are in today. It starts from Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976). The history of this is explained by Lord Denning MR, sitting in the Court of Appeal in Davis v Johnson [1979] AC 264 at 270-271:

‘“Battered wives” is a telling phrase. It was invented to call the attention of the public to an evil. Few were aware of it. It arose when a woman suffered serious or repeated physical injury a from the man with whom she lived. She might be a wife properly married to her husband: or she might only be a woman called, falsely, a “common law wife.” No such woman was known to the common law, but it means a woman who is living with a man in the same household as if she were his wife. She is to be distinguished from a “mistress,” where the relationship may be casual, impermanent, and secret….’

“Battered wives” are now a matter of public concern. The House of Commons in 1975 set up a Select Committee of its members to report on violence in marriage. This committee heard much evidence on the problem. They presented a report calling for steps to be taken urgently to protect women who were subjected to violence. These steps included legislation. This took place and is now to be found in [DVMPA 1976 which] came into force in June of last year 1977. Soon afterwards many a woman sought the aid of the county courts for protection under the Act. At first the judges granted injunctions against the man, ordering him out of the house. They followed the very words of the Act. But in two cases the man appealed to this court. In each case his appeal was allowed. It was held by two divisions of this court that the judges in the county court had not the power to grant these injunctions. So the ‘battered wife’ was without the expected redress….’

In Davis v Johnson the Court of Appeal was considering an appeal by the “battered” (though unmarried) “wife”; and was considering its own powers to differ from its earlier decisions.

Of the second question it is enough to say that, in powerful speeches, Lord Diplock and Scarman in the House of Lords said no, the Court of Appeal must not follow the Denning approach on this point (which proposed departing from previous decisions whenever they appeared to be wrong: p 197). Instead, they affirmed the rule in Young v Bristol Aeroplane Co Ltd [1944] KB 718: that (save where there were conflicting decision, or a contrary decision of the House of Lords) the Court of Appeal could only diverge from its own earlier decision where that had been made per incuriam (ie without it being aware of other binding or statutory authority: see eg Gohil v Gohil (Crown Prosecution Service interested party) [2012] EWCA Civ 1550,  [2013] Fam 276). It also set out what later became known as the rule in Pepper v Hart [1993] AC 593: that is, as to the extent to which the courts may take account of parliamentary deliberations when legislation is passed.

However this is incidental. On the substantive point, the House of Lords in Davis v Johnson said that yes, Denning MR’s Court of Appeal was right in its findings, if wrong in the way it made them. The court did have power to exclude an owner from his or her home. And so the law remained, more or less, till the mid-1990s.

Law Commission and domestic violence: Family Law Act 1996

In 1992 the Law Commission published its Report on Domestic Violence and Occupation of the Family Home (Law Comm No 207, 1992). And suddenly the Commission found itself in 1995 in ‘the centre of a major political storm’, as Dr Stephen Cretney, a one-time Law Commissioner, explains in ‘The Law Commission: True dawns and False dawns’ (published in Law, Law Reform and the Family (Oxford, 1998). Its Family Homes and Domestic Violence Bill was denounced by a coalition of Tory MPs and the Daily Mail as ‘a charter for live-in lovers’. The bill lapsed but re-emerged the following year as Family Law Act 1996 (FLA) Pt 4 (most of the remaining 3 parts were Lord McKay LC’s ill-fated divorce reform provisions, now repealed). At s 41 was a provision (also now repealed) that, in the exercise of any discretion under the Act, the court must assume that a person who has not married their partner has not shown the same commitment as that of married couples.

With effect from July 2007, the power of arrest provisions in FLA 1996 were replaced to give the police powers in criminal proceedings to seek a conviction of an alleged abuser (s 42A). And thus, into the 1996 Act is introduced its hybrid character: family law procedural rules for the obtaining of a non-molestation order (FLA 1996 s 42), with the shift to criminal law for any breach of that order (though s 42A stresses that a person cannot be convicted under s 42A as well as being the subject of civil committal proceedings). That may prove to be the start of a shift for the whole scheme of law in domestic abuse to criminal proceedings governed by a statute promoted by the Home Office. Let us see.

Domestic abuse and the Court of Appeal

Reported cases have been very few under FLA 1996 s 42; then two come along from the Court of Appeal as, perhaps, the 1996 Act is in the evening of its life. (Re T will be touched on here. The second case, Re J (Children) [2018] EWCA Civ 115 (6 February 2018) depends on its facts and adds little to the domestic abuse jurisprudence.)

In Re T (A Child)(Non-molestation Order) [2017] EWCA Civ 1889 McFarlane LJ explains the meaning of the 1996 Act scheme in his careful definition of s 42. This provides for two categories of beneficiaries of an order under s 42(2), he says at [40]: “The importance of s 42(2)(b) within the structure of FLA 1996 is not to be understated”. He sets out the bases for the court to make a non-molestation order:

(1) Where application is made for an order has been made by “a person who is associated with the respondent”; a provision “very largely limited to adult relationships and it is not expressly focussed upon the protection of any relevant child”.

(2) Separately, says McFarlane LJ, “there is the wider jurisdiction to protect ‘any other party to the proceedings or any relevant child’ under s 42(2)(b). The purpose of s 42(2)(b) would seem to be clear; it is the means by which the court may make orders for the protection of children whose circumstances have come to the notice of the court in other family proceedings.”

It will be important for law reformers to keep this distinction in mind when any bill comes out of the consultation paper.

In Re T a non-molestation order under was made under s 42(2) on application by a local authority against a threatening mother and partner, for protection of a child (aged 10) with foster carers. The case established that a local authority can apply for a non-molestation order under s 42, which then gives enforcement powers to the police if the child’s mother attempted further to remove her from her foster home; and that any interference with the child could be regarded as molestation under the 1996 Act.

McFarlane LJ emphasises that family judges have “consistently avoided a precise definition” of “non-molestation” ([24]). Were the Re T foster parents tempted to apply to join in their foster child’s care proceedings, had they been given party status and had they been financially eligible, they would have stumbled at the final fence. They would have come within FLA 1996 s 42(2)(b) as explained by McFarlane LJ but would not have been “individuals who are associated with each other” for LASPOA 2012 purposes. As LASPOA 2012 Sch 1 para 12(7)   states “(b) ‘associated’ has the same meaning as in FLA 1996 s 62”; and as Re T explains, s 42(2)(b) is the bit of s 42 which covers those who are not “associated” within the terms of FLA 1996 s 62.

Where now?

The consultation paper concentrates on four main areas: promoting awareness of domestic abuse; the issue of protection and support of victims; the question of how to ‘pursue and deter’ perpetrators; and to improve performance ‘in all sectors’. Of these the lawyer will be concerned with the third element (Chapter 3). This looks first at police response and then at ‘Improving victims’ experience of the justice system’.

The paper may have been prepared by predominantly Home Office civil servants. It shows little appreciation of the differences in procedure between criminal proceedings (see the range of provisions and special measures to intimidated witnesses and children under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 and its supporting rules and practice directions) and the parallel (introduced three months ago) minimal provision for ‘vulnerable’ witnesses and parties (ie not yet children) in family proceedings. For example, (at p 50 – note the two ‘victims’):

‘A range of mechanisms are designed to help support victims to give their best evidence. This includes special measures for vulnerable and intimidated witnesses, prohibiting unrepresented defendants from cross-examining victims, support from the Witness Care Unit [etc]… and criminal justice professionals specially trained in domestic abuse.’

On the facts of many cases, there will frequently – perhaps invariably – be a convergence between criminal proceedings and family cases. Procedures for criminal proceedings and for witness in such proceedings (for which read “parties” in family proceedings) are much more developed – at least so far as statutory provision goes (see YJCEA 1999) Pt 2 (and its accompanying rules and practice directions)). By contrast with YJCEA 1999 provision, for special measures (or “measures” as they are called in FPR 2010 Pt 3A) and other witness/party protection in family courts, are the responsibility of the Minister of Justice. (See discussion of YJCEA 1999 in family proceedings in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 8.)

Jobs for the Ministry of Justice

From the point of view of a family lawyer, much work needs to be done by the respective departments – both in primary legislation and in rule-making – to define where is to be the meeting point between family and criminal proceedings. For example, in family proceedings the standard of proof is the civil standard. In criminal, the standard is beyond reasonable doubt. But if the criminal courts are used for enforcement – as now under Family Law Act 1996 s 42A (enforcement of a non-molestation order) – then it must be recalled that the enforced order was only proved to the lesser standard (see analogous comments of McFarlane LJ in Iqbal v Iqbal [2017] EWCA Civ 19). The question then is: did the respondent have European Convention 1950 Art 6(3) compliant rights at the civil (ie family) proceedings stage? (I deal with this in the latter part of my blog post on Legal aid and Convention rights in domestic violence committal proceedings ).

How much farther (as family proceedings) are family courts intended go beyond immediate members of the family – as proposed by the paper – than in FLA 1996 s 62? For example it is proposed that the elderly parent, who is abused by an adult child, should have a cause of action in domestic abuse. If that is to be a civil remedy, will it be pursued in the family courts?

Next – and this is squarely with the Ministry of Justice – to what extent will funding be made available for family and other proceedings (including the special measures they demand) to make the Government’s high aims (as set out in the introduction to the paper) work? Will the Lord Chancellor fairly provide legal aid for complainants and for those alleged to have abused; and to make any new scheme work fairly?

And a thought: criminal proceedings are in open court. Why are not the same types of proceedings in open court in the Family Court? At present most family judges and rule-makers seem to expect them to be kept private? And if so, why? Does that not rather defeat the Home Secretary’s object?


David Burrows

8 March 2018