The Domestic Abuse Act 2021 – transformational legislation or a missed opportunity?
Following the passing of Domestic Abuse Bill recently, Celestine Greenwood, a barrister at Exchange Chambers discusses the question with family law professionals as to whether the legislation is transformational or a missed opportunity.
The much-vaunted, much-challenged and bedeviled, and long-awaited Domestic Abuse Bill was finally passed into law with the granting of Royal Assent last Thursday, 29th April 2021.
The sigh of relief amongst all those who have suffered so much and fought so hard for this legislation was palpable.
This piece of legislation has variously been heralded as being a “once-in-a-generation opportunity” (by Theresa May to the BBC back in October 2019 when the original Bill was introduced to Parliament and much more recently by the Lord Chancellor, Lord Buckland, during Parliamentary debate) and, as a “…landmark piece of legislation which will be transformational in better protecting and supporting victims of domestic abuse and their children, and bringing their perpetrators to justice” (Baroness Williams of Trafford who, co-sponsored the Bill, in her letter to Peers published on 27th January 2021).
Lofty ambition indeed but the question for family law practitioners engaged in the struggle to effect justice, at least in terms of family life and arrangements in cases of alleged domestic abuse, is to what extent, if at all, the legislation is transformational.
The answer, of course, depends to some extent on your individual point of view. However, a real criticism that can immediately be levelled against this claim is that this Act does not address the ‘pro-contact culture’ of the family courts identified by the Harm Panel Report as one of the ‘four overarching barriers to the family court’s ability to respond consistently and effectively to domestic abuse and other serious offences.’
The Bill could have overturned or tempered the presumption in favour of parental involvement in the life of a child enshrined in law by section 1(2A) of the Children Act 1989. Equally, it could have created a statutory presumption that in cases where domestic abuse and harm to the child(ren) (for example as set out by the Court of Appeal at paragraph 31 in Re H-N) is proved direct contact is contraindicated. It does neither.
The Act is not wholly without items to applaud though. For example, we now have a comprehensive definition of domestic abuse. Similarly, the prohibition on cross-examination of the alleged victim by the alleged perpetrator is to be welcomed, not least because this may go some way to helping to address one the other four structural barriers identified by the Harm Panel: problems created by the adversarial nature of our system.
However, this should lead us to query how, and by whom, the case for the alleged perpetrator should be put. Last year I was instructed on behalf of the child in private law proceedings in which neither parent, both active parties in the case, qualified for legal aid. I was required, in effect, to act for all three, primarily putting the case on behalf of the child as instructed by the Rule 16.4 Guardian but also cross-examining each parent on behalf of the other when necessary. Aside from the obvious ethical and professional tightrope to be walked in such circumstances, and the psychological strain this imposed, the reality is that in the majority of cases of alleged domestic abuse the child(ren) is not represented.
The reversal of the position viz legal aid in cases of domestic abuse riven by LASPO 2021, as advocated for the Bar Council amongst others, would have gone a long way to remedying the situation. Similarly, increasing the available resources so that the child(ren) may be represented in such cases more often, if not as matter of course, would assist in such cases, respond to the resource constraint barrier identified by the Harm Panel and contribute to addressing the Panel’s deep concern about how the voice of the child is properly heard is such proceedings.
Perhaps what can properly be concluded is that having a Domestic Abuse Act in and of itself is transformational. Despite the many missed opportunities, if it is seen and used together with the recommendations of the Harm Report and the recent Court of Appeal decision in Re H-N and Others as part of a set of new tools we may yet, with passion and commitment, effect a transformation in how domestic abuse cases are dealt with.