What is domestic abuse?
The government defines domestic abuse as “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can include, but is not limited to: psychological, physical, sexual, financial and emotional.”
Police in England and Wales operate a national disclosure scheme known as Clare’s Law, where an individual has the right to ask and the right to know whether a current partner represents a risk of violence.
In circumstances where the police receive information that may affect a person’s safety, the police can inform a potential victim or a person in a position to protect them.
This right is regulated and the police will only disclose information where it is lawful, necessary and proportionate. The police should meet with other safeguarding agencies before making a disclosure and the disclosure should be sufficiently detailed so as to allow the potential victim to make an informed decision.
For some time, there has been controversy about the perceived failure of the Family Courts to protect alleged victims of domestic abuse and their children from the dual harm of an abusive partner/parent and a traumatic court process.
In 2019/2020 there were 55,253 private law children applications and at least 40% of them raised issues of domestic abuse. This is still a cause of deep unease: in such cases, the stakes are high but access to legal representation is limited because the scope of Legal Aid is very limited now.
We know from research that children will be harmed by being exposed to and living with domestic abuse. The effects of domestic abuse on children may include emotional and behavioural difficulties and physical symptoms associated with trauma and stress.
There is a balance to be struck between the need to protect children, the need to protect victims of domestic abuse, and protecting people against false allegations (this is not uncommon, where one parent fabricates allegations about the other simply to prevent contact).
Finding of Fact hearings
The Court routinely lists separate ‘fact-finding’ hearings to establish the truth or otherwise of allegations.
Where there are specific and serious individual allegations of physical or sexual violence the approach is straightforward: set them out and address each of them in turn.
Where coercive and controlling behaviour is alleged it is less straightforward. The incidents alone may be relatively minor, but together they have a cumulative affect over time.
But the Court is not ‘a Court of morals’ in the position of passing judgment on every ill-considered or objectionable act by a party to a relationship.
There is however a balance: on the one hand to put minor incidents in context but, on the other, to be mindful of excusing abusive behaviour.
Fact-finding hearings are routinely listed for 1 or 2 days, perhaps 3. At least one party is often unrepresented. The courts are busy and establishing patterns of coercive and controlling behaviour through many relatively ‘minor’ incidents takes time and care.
Past and present approach
In the 1970s and 1980s the view was of ‘violence’ or ‘abuse’ as something between the adults had been left behind, essentially ‘in the past’ and therefore irrelevant.
Changes happened in the 1990s with the Family Law Act 1996 and new powers available to go the court to grant injunction orders, including attaching a power of arrest.
There are two common types of injunction order the Family Court can grant:
- A non-molestation order: to protect someone from harm, including abuse; and
- An occupation order: to regulate the occupation of, for example, the family home. The court also has power to oust someone from the home.
The Court will look less at individual incidents (unless they are obviously of significant concern) and more at the pattern of behaviour.
The guidance is that:
- The focus should be on issues relevant to the proceedings
- Only those allegations which it is necessary to resolve the issues in the case should be considered
- In every case where domestic abuse is alleged the parties should be asked to describe (orally or in a statement) the overall experience of being in a relationship with each other
- Where coercive and controlling behaviour is alleged, that should be the primary issue for determination
This is all well and good but the challenge for the courts will be to undertake this careful examination within the constraints of available time, unrepresented parties and resources. Time will tell whether that is possible.