Some of the most difficult cases the legal system has to deal with span both the criminal and family courts, often at the same time. From a practitioner’s perspective understanding how the criminal and family regimes operate and overlap is essential in order to help clients navigate their way through these legally complex and emotive cases.
The Domestic Abuse Act 2021 offers greater protection for complainants who make allegations of domestic abuse, following the breakdown of a relationship. The Act and its interplay to both criminal and family proceedings adds a further layer of complexity and interpretation to an already nuanced legal landscape.
This blog will focus on three main areas: First, the key provisions of the Domestic Abuse Act 2021 (“the 2021 Act”); second, the 2021 Act’s relevance to family court proceedings, and; third, how criminal and family law proceedings overlap in practice.
The Domestic Abuse Act 2021
New statutory definition of “domestic abuse”
The 2021 Act created the first statutory definition of domestic abuse which includes not only physical violence but that of sexual, psychological and economic abuse, as well as coercive and controlling behaviour. This can be limited to a single event or a series of actions. The prohibited behaviour of one person towards another will only fall within the definition where both parties are aged 16 and over and personally connected to each other, i.e. in a relationship, or family members. The age limit was lowered from 18 to 16 following a public consultation in 2012, recognising that young people can experience abuse in their relationships.
While there is no single criminal offence of “domestic abuse”, there are a number of separate offences in English criminal law which cover the many forms this abuse can encompass. Examples include:
- Common assault, Offences Against the Person Act 1961
- Sexual assault, Sexual Offences Act 2003
- Harassment, Protection from Harassment Act 1997
- Coercive and controlling behaviour, Serious Crime Act 2015
The purpose of the 2021 Act was to make clear that domestic abuse covers a variety of behaviours, and raise awareness of the impact it can have on the victim and their family, whilst ensuring appropriate help and support is provided.
Extension of coercive and controlling behaviour
The offence of coercive and controlling behaviour came into force in December 2015 and covers behaviour in which a person is controlling and coercive towards another person to whom they are personally connected, where the behaviour has a “serious effect” on that person. Such behaviour can include causing a person to believe violence will be used against them on repeated occasions, or isolating a person from their friends and family and taking control over aspects of their everyday life to the point it causes them alarm or distress which has a substantial adverse effect on their day-to-day activities.
Following a government review which highlighted that those who allege abuse by an ex-partner can continue to experience controlling or coercive behaviour long after separation, the 2021 Act extended the scope of “personally connected” to include ex-partners and family members who do not live together. This is likely to result in an increase in investigations and prosecutions, and anecdotally, we have seen an increase in the number of clients seeking our assistance who fall within this category.
Special measures in family court proceedings
From 21 July 2022, where domestic abuse allegations are raised, the complainant is entitled to special measures when participating in any family court proceedings against a defendant with whom they have previously been in a relationship. These proceedings can include children proceedings, injunctive proceedings or financial proceedings on divorce.
These special measures include a prohibition on the cross examination of a complainant by a defendant if the evidence contains allegations of domestic abuse or the defendant has been convicted, cautioned or charged with a relevant offence (such as coercive and controlling behaviour). If the defendant is unrepresented, the court will appoint a specially trained legal professional to conduct the cross-examination, and where this is not possible the judge will take this role. The 2021 Act also envisages the use of screens in court, staggered arrival and departure times, and separate waiting areas, entrances and exits.
The 2021 Act similarly affords a statutory presumption to complainants in criminal proceedings, where an allegation of domestic abuse has been made, that they will automatically be eligible for assistance when giving evidence.
Domestic Abuse Protection Notices and Orders
The 2021 Act repeals existing Domestic Violence Protection Orders (“DVPOs”) and Domestic Violence Protection Notices (“DVPNs”), giving police new powers to issue Domestic Abuse Protection Notices (“DAPNs”) and the magistrates’ courts powers to issue Domestic Abuse Protection Orders (“DAPOs”), though these provisions will not come into force until 2023.
DVPOs were limited to a maximum duration of 28 days and any breaches were treated as a civil contempt of court, where the maximum penalty was 2 months imprisonment. The new DAPOs are flexible in duration, and a breach amounts to a criminal offence with a maximum penalty of 5 months imprisonment. The 2021 Act now enables complainants, or somebody representing their interests to apply for a DAPO directly, allowing complainants to seek protection from the criminal courts, rather than relying on civil law remedies. Other protective orders, such as Non-Molestation Orders and Restraining Orders will remain in place for cases which are not domestic abuse related. Non-molestation orders and occupation orders (see further below) are family court orders designed to protect a party from violence or to remove a party from the family home, whereas a restraining order is a criminal order which can be made upon conviction or acquittal of an offence for the protection of the complainant.
DAPNs require individuals who are accused of perpetrating domestic abuse to leave the family home for up to 48 hours. DAPOs can prohibit an individual from coming within a specified distance of the complainant’s home (and/or other premises, such as a workplace), and impose positive conditions, such as to attend a behaviour change programme, an alcohol or substance misuse programme or mental health assessment. In order to make a DAPO, the court must be satisfied that the order is necessary and proportionate to protect the complainant, and any positive conditions must be evidenced to the court to be both suitable and enforceable.
“Revenge porn” laws were introduced in 2015 to criminalise the practice of disclosing intimate images of an individual without their consent. This scenario was becoming particularly prevalent when a relationship ends and an aggrieved party shared images to hurt or embarrass the other party. The 2021 Act extended the scope of this offence to cover the threat to disclose intimate images with the intent to cause distress. The maximum penalty of 2 years imprisonment remains in place.
Domestic abuse in the family court
When a relationship breaks down, domestic abuse can sometimes be cited as a cause, and allegations may be a feature of any subsequent family court proceedings. For example:
- Non-molestation proceedings
An application may be made to prevent one party from “molesting” another or their children. "Molestation" is not defined in the relevant legislation, but in practice non-molestation orders have been used to protect a party from violence, harassment and threats, and the 2021 Act’s definition of domestic abuse may now assist the court further in these cases.
The court must be satisfied that a party requires protection from another and that court intervention is the only way to control their behaviour. If a party has not sought other means of protection (i.e. by reporting to the police), the court may be reluctant to intervene.
Non-molestation orders can be made without giving notice to the respondent (if there is real danger) but they will always be given an opportunity to respond to the allegations later at a further hearing, save for in exceptional cases.
- Private children proceedings
If the parties have children, there may be a dispute over who the children will live with or how much time they will spend with each parent. Where domestic abuse is raised as an issue, the family court is required to identify the factual and welfare issues involved and consider the nature of the concerns and their relevance to the child arrangements.
A fact-finding hearing may take place if the court determines it is necessary to hear evidence from the parties in order to determine whether or not the allegations made are true.
Where the allegations are admitted or proven, the court must ensure that the child arrangements protect the safety and wellbeing of the child and the other parent and do not expose them to risk of further harm.
Overlap of criminal and family court proceedings
While family court proceedings are on-going, there may also be an existing police or local authority investigation, or even criminal court proceedings in relation to the same allegations. A number of issues can arise when there are concurrent proceedings.
Impact of ongoing police investigations
There is no time limit on police investigations and due to chronic under-resourcing, there can be significant delays in obtaining an outcome, leaving family proceedings awaiting the outcome of the criminal investigation in limbo.
This can be equally frustrating to those who are the subject of an investigation, as the existence of an ongoing police investigation, regardless of the allegation or evidence can have a significant adverse impact on their position within the family proceedings.
Police or court-imposed bail conditions
Bail conditions imposed on the individual charged or under investigation may cause practical difficulties in term of progressing the family law proceedings. For example, conditions not to contact the complainant directly impact on child arrangements. Bail conditions can often prevent family courts from being able to carry out required assessments, and police delays in amending relevant bail conditions can on occasion delay positive findings for child-parent contact.
Bail conditions should only be imposed where necessary and proportionate and should not be used in place of court orders or where protective orders already exist. It is therefore imperative that those representing the client in a criminal investigation have due regard to the family court proceedings and to argue for proportionate conditions that allow some flexibility. For example, in a case where there are bail conditions not to contact the complainant, a carve out to allow indirect contact via family solicitors may be appropriate.
Impact of criminal court proceedings
There may also be issues around gathering or sharing evidence between the different sets of proceedings. It should never be taken for granted that evidence in one set of proceedings can be used in another and there are strict rules which guard against this.
At the same time practitioners should be aware that evidence provided in one set of proceedings (for example during live evidence or in a witness statement or pleadings) could be used in the other proceedings. As such a collaborative approach between representatives in the family and criminal arenas is essential to ensure coordination and to avoid contradiction.
It is important to note that whilst a family court is not bound by findings in other proceedings the verdict in a criminal court will normally be given significant weight by the family court if it comes before a fact finding or final hearing. Conversely, the findings in a family court are not automatically admissible in a criminal court without the relevant applications under the “bad character” provisions in the Criminal Justice Act 2003. Understanding the interplay of the respective regimes is of course vital to representing a client whether they are the complainant or the defendant.