Domestic Abuse Act 2021 and Clare’s Law

Background

Clare Wood was 36 years old when she was murdered by her ex-boyfriend, George Appleton on 2 February 2009. Clare had made numerous disclosures to the police over the months prior to her death, including reporting Mr Appleton for attempted rape and harassment.

Clare had no idea that her former partner had an extensive criminal background, particularly relating to offences of domestic abuse. He had been imprisoned on two separate occasions and had failed to disclose this information to Clare. After her death, Clare’s family were horrified to find out the history of their daughter’s former partner, and felt a great injustice: had this information been disclosed to Clare, she would have had the opportunity to make an informed decision about her relationship with Mr Appleton at the outset.

Clare’s Law

Clare’s father was a key campaigner for the introduction of the Domestic Violence Disclosure Scheme, or ‘Clare’s Law’ as it is widely known. This scheme was introduced as a guideline for police forces across the nation in 2014.

The concept behind Clare’s Law is to enable victims, or potential victims, of domestic abuse to find out about their partner’s criminal history if they have reason to believe that they are at risk of suffering domestic abuse. The scheme has two elements:

1. ‘Right to ask’  – under the scheme an individual or relevany third prty can ask the police to check whether a current or ex-partner has a violent or abusive past. If records show historical abuse the police will consider disclosing the information.
2. ‘Right to know’ – this allows the police powers to disclose information about a violent or ausive individual which may impact on a current or ex-partner.

In practice, the scheme was supposed to enable victims to go into any police station, and request disclosure of relevant offences that the partner may have committed in the past. The victim would need to disclose their name, address and date of birth to the police, and the idea was that the police would first assess whether there was an immediate risk of harm to that individual. Home Office guidance states that police will aim to complete the enquiries within 35 days.

Did it work?

The issue with Clare’s Law was that the disclosure of such sensitive information was at each police force’s discretion. Because Clare’s Law was a set of guidelines and not legislation the police were under no obligation to disclose information.  Until the introduction of …..

The Domestic Abuse Act 2021

The Domestic Abuse Act 2021 received Royal Assent on 29th April 2021 has been described as the ‘most comprehensive package ever’ and focuses on bringing the issue of domestic abuse to the forefront of society.

The Act includes the first statutory government definition of ’domestic abuse’ which goes beyond physical violence and includes psychological and economic abuse. The Act allows Clare’s Law a statutory footing, meaning that victims have a legal right to check out the offending history of their partner, and this is no longer at the police force’s discretion.

The Bill has appointed a national ‘Domestic Abuse Commissioner’ tasked with improving the response and support for victims. It introduces ‘Domestic Abuse Protection Notices’ and ‘Domestic Abuse Protection Orders’ which compels perpetrators to address drug and alcohol misuse and behaviour management.

Part 5 of the Act prevents perpetrators from cross-examining victims in the family courts, a practice which has come under scrutiny in the media on numerous occasions.  Previously, in matters relating to finances, injunctions and children, if a party is unrepresented, then they have the right to attend court as a Litigant in Person. This therefore means that there is the potential that they will be able to cross-examine their victim.

The Act states that if a perpetrator is involved in such proceedings without representation, the court will appoint a barrister to conduct any examination properly and fairly.

In addition to the above, the Act plans to introduce new and updated training for police, probation officers, social workers and job centre work coaches to ensure that they are fully aware of the signs of domestic abuse. This is key as many victims do not come forward about the abuse that they are suffering at home. This would therefore enable third parties to offer advice and signpost to appropriate support services for victims who would not necessary have address the issues otherwise.

Key Criticisms

Some proposals; protection for migrant women, stalking / perpetrator register, judicial trainng and coercion defence were rejected so there is still work to be done however the Domestic Abuse Act 2021 has made solid strides towards creating a a society free from abuse.

Domestic Violence & Family Law

Domestic violence is often a feature of family law cases involving divorce and children  and the court and CAFCASS take allegations seriously and investigate the same. At the point of issuing any Children Act application, CAFCASS are required to undertake safeguarding checks which highlight to the court whether any of the parties to the proceedings have any criminal convictions and whether they are known to the Local Authority and police. These issues are therefore addressed at the first hearing (FHDRA).

Difficulties have arisen in recent cases since the changes in Legal Aid. Victims of domestic abuse who have reported the incidents to the police are often able to obtain Legal Aid whereas the alleged perpetrator cannot. In some cases, a finding of fact hearing is necessary to determine whether on the balance of probabilities the alleged allegations occurred (note: the lesser test than in the criminal system which requires proof beyond reasonable doubt). Discussions have taken place in recent cases to address concerns that an alleged perpetrator who is not legally aided could put questions to the victim in cross-examination. In recent cases, parties have been asked to put their questions in writing to avoid this.

The police are of course the first agency to contact if you are the victim of domestic abuse but action can also be taken from a family law perspective by obtaining a non-molestation order. A non-molestation order or injunction prohibits the perpetrator from, for example, contacting the victim, attending within a certain radius of their property etc. It has a power of arrest attached to it and therefore if the perpetrator breaches the same, the police can be called and will immediately arrest the perpetrator. A non-molestation order is not suitable if there are already bail conditions as it would be a duplication but they can help to protect a victim who does not have such safeguards. A non-molestation order can also last for a number of years.

If you are experiencing domestic abuse or have been threatened with violence by your partner or ex-partner our specialist domestic abuse solicitors can help.  Each case is individual and you cannot be expected to remain in an environment where your safety is under threat. As specialist family solicitors we can advise you on the best course of action.

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