Category: Relationships

Last week was a bumper week for new family law legislation. First we had the introduction of the Divorce, Dissolution and Separation Bill on Thursday, and that was quickly followed on Friday by the publication of the report of the Parliamentary Joint Committee (of MPs and Members of the Lords) on the Government’s draft Domestic Abuse Bill.

Before I look at the report, a little background, for the benefit of those who have not been following. In February 2017 the Prime Minister announced plans for work “to transform the way we think about and tackle domestic abuse, leading to the introduction of a new Domestic Abuse Bill.” In March 2018 the Government launched a consultation to seek views on how this transformation could be achieved, and in January this year the Government published its response to the consultation, including a draft Bill. In the following month the Joint Committee was appointed to conduct ‘pre-legislative scrutiny’ of the draft Bill.

The draft Bill contains a number of provisions, including the first statutory definition of domestic abuse, and the establishment of a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”. For further details of what the Bill contains, see this post.

OK, so what does the report recommend? Well, it covers a lot of ground, running to over a hundred pages, so I can only give brief details here. In summary, the Committee say that whilst it welcomed the proposed measures in the Bill, it was concerned with ensuring their effectiveness in practice. Their recommended changes to the Bill “are to ensure that all those affected by domestic abuse receive protection and a tailored response to their differing needs.”

As to the specifics, the recommendations included:

• Children – The Committee is concerned over the absence from the definition of domestic abuse of children as victims of abuse perpetrated by adults upon adults. They recommend that the Bill be amended so the status of children as victims of domestic abuse that occurs in their household is recognised
• Gendered nature – The Committee believe it is crucial that the gendered context of domestic abuse is recognised on the face of the Bill, and recommend the Government introduce a new clause into the draft Domestic Abuse Bill in the following, or very similar, terms: “When applying Section 1 and 2 of this Act [which contain the definition of domestic abuse] public authorities providing services must have regard to the gendered-nature of abuse and the intersectionality of other protected characteristics of service users in the provision of services, as required under existing equalities legislation.” Note that a gendered definition of abuse does not exclude men.
• Courts – “the Committee strongly supported the proposal to require the provision of special measures such as video links and separate waiting rooms to protect witnesses in criminal proceedings from coming into contact with their abusers, but recommended that these measures should be extended to family and other civil courts.”
• Cross-examination – The Committee called for a mandatory ban upon cross-examination of survivors of abuse by the perpetrators in the course of family and other civil proceedings. As I reported in my post about it the Bill does cover this, but the Committee is concerned at the potential for inconsistency in application, because too many victims of domestic abuse will be protected only at the discretion of the court. They therefore recommend that the mandatory ban is extended so that it applies where there are other forms of evidence of domestic abuse, as in the legal aid regime threshold for obtaining legal aid in domestic abuse cases.
• Domestic Abuse Prevention Orders – The Committee was concerned about the potential for inconsistent application between civil and criminal courts, and that the courts would be reluctant to impose the orders in all but the most exceptional of circumstances. The Committee therefore recommends that the Government carry out a thorough review of the protective measures currently available before going ahead with its proposals for the Domestic Abuse Protection Order. Following that review, the Committee anticipates that the Government will amend the current scheme, “both to tackle the flaws seen in the Domestic Violence Protection Order process and to ensure that the courts are not obliged to take a restrictive approach to imposing the new order.”
• Bail – Lastly, “The Committee called on the Government to urgently bring forward legislation to increase the length of time suspects can be released on pre-charge bail in domestic abuse cases, and to create a presumption that suspects under investigation for domestic abuse, sexual assault or other significant safeguarding issues only be released from police custody on bail, unless it is clearly not necessary for the protection of the victim.”

You can read the Joint Committee report here (PDF – an HTML version is here). The draft Bill can be found at Annex D of the Government’s response to the domestic abuse consultation, which you can find here.

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I suspect that when most people think of domestic abuse they envisage physical abuse, and physical injuries to the victim. At least that is likely to be the case with people who have not experienced abuse, or witnessed it, whether first- or second-hand. But domestic abuse, even of the physical kind, can also seriously affect the mental state of the victim. Of course, it has long been well known that abuse of whatever kind can have a serious detrimental effect upon the victim’s mental state, but new research suggests that the effect is considerably more serious than, I suspect, many would have imagined.

The research was carried out by Birmingham University and published in the British Journal of Psychiatry. It should be noted at the outset that the research looked only at female survivors of domestic abuse, or “intimate partner violence” (‘IPV’), as the researchers called it, although I see no reason why the findings would not be similar with male survivors. They matched 18,547 women exposed to IPV between the 1^st of January 1995 and the 1^st of December 2017, to 74,188 unexposed women, identifying ‘outcomes of interest’ (anxiety, depression and serious mental illness).

The research found that 49.5% of women in the exposed group had some form of mental illness, compared with 24% in the unexposed group. That would suggest that women exposed to domestic abuse are about twice as likely to suffer mental health problems as women who have not been exposed to domestic abuse. However, the effect of abuse is actually worse than that. About half of the women in the exposed group had already experienced some form of mental health problem, whereas only about a quarter of those in the unexposed group had. The effect of this (as I read it) is that women exposed to domestic abuse are actually about three times as likely to suffer mental health problems as women who have not been exposed to domestic abuse.

That is quite a significant finding, indicating that the effects of domestic abuse are potentially even more serious than previously thought. And it may be trite to drag this up, but it is surely a truism: physical scars may heal quite quickly, but mental scars can take much longer. The adverse effects of domestic abuse may stay with victims long after the abuse has ended.

Obviously, as the researchers point out, the study could have important implications for health practitioners when treating women (and no doubt also men) with mental health problems. But could it have any implications in the field of law?

To be honest, I’m not entirely sure that it could have any direct implications, other than to make us all even more aware of the adverse effects of domestic abuse, and of how important it is that we do all we can to reduce the incidence of abuse, and to ensure that its victims are protected as quickly as possible.

We are not, for example, concerned here with the type of abuse. The study does not distinguish between different types of abuse, merely looking at the effect of abuse generally upon the mental health of the victim. We are not therefore considering whether the definition of abuse should be extended to cover other types of abuse. The Government is already intending to introduce a revised definition of domestic abuse in its Domestic Abuse Bill, as I explained in this post, and that definition will include “psychological, emotional or other abuse”, which obviously can have a direct effect upon the victim’s mental health.

But there are also indirect implications. Take, for example, the issue of child arrangements in a case where there have been findings of domestic abuse. It is easy to see that the effect of that abuse upon the mental health of the ‘victim parent’ could certainly have a bearing upon what arrangements are appropriate. For example, if the parent with whom the child lives suffers from anxiety problems resulting from abuse by the other parent, then that obviously must be taken into account when formulating any contact arrangements.

In short, research like this helps to inform those who have to make decisions in the family courts, and those who advise the decision makers.

You can read the research study here.

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