The Domestic Abuse Act 2021: Familiar but uncharted territory for Family Courts

The Domestic Abuse Act came into force on 29 April 2021. For the family courts, there are several implications, in particular, provision for protection for victims and witnesses in legal proceedings.

There are two new measures in place, designed to assist witnesses and victims: 

  • A special measure for party or witness in family proceedings to improve the quality of their evidence and participation in the proceedings (section 63 Domestic Abuse Act 2021); and
  • The prohibition on cross-examination in person by those alleged to be victims or perpetrators of domestic abuse (section 65 Domestic Abuse Act 2021). Below, I will focus on this second measure. 

The prohibition of cross-examination is introduced through an amendment to the Matrimonial and Family Proceedings Act 1984 by insertion of 31Q-31Z. These changes are new for family proceedings, but they have been in place for criminal courts for some time. It plugs a gap which Hayden J described as ‘manifestly irrational and unfair’ (PS v BP [2018] EWHC 1987).
 
Under the Domestic Abuse Act 2021 there can be prohibition on cross-examination in four circumstances.
 
First, there is a prohibition for cross-examination by a party who has been convicted, cautioned, or is charged with a specified offence. It will also prevent victims of domestic abuse (or a specified offence) from having to cross-examine a witness who has been convicted, cautioned or charged with that offence. The specified offences will be defined in the regulation, which is not yet in place.
 
Second, there will be a prohibition on cross-examination by a party subject to an on-notice protective injunction. This also extends to parties who are protected by an on-notice injunction. Like above, what constitutes “protective injunctions” will be defined in a regulation yet to be issued by the Lord Chancellor.
 
The third category includes a similar prohibition on cross-examination, but where there is ‘specified evidence’ of domestic abuse. Again, the meaning of ‘specified evidence’ will be fleshed out in the regulation.

The fourth category is a safety valve where none of the above applies. In the absence of applicability of any of the above, the Court will have the power to prohibit a party from cross-examining a witness in person if:

  • The quality condition or the significant distress condition is met; and
  • It is not contrary to the interest of justice to give the direction.

The quality condition is met if the quality of the evidence is likely to be diminished if cross-examined by the party in person, and the quality of the evidence would be improved if the direction were given under the section.
 
The significant distress condition is met if it would cause significant distress to the witness or the party, and that distress is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.
 
Where any of the above conditions are met, the Court will consider if there are any alternative means for the witness to be cross-examined or of obtaining evidence that the witness might have given under cross-examination.
 
In cases when the Court considers there is no alternative, the Court must invite the party to the proceedings to arrange for a legal representative and require the party to notify the Court, by the end of a period specified by the Court, whether a legal representative is to act for the party.
 
If the party has notified that they will not have a legal representative or has not notified at all, then the Court will consider if it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the Court to represent the interest of the party. If the Court decides that it is in the interest of justice, the Court must appoint a legal representative chosen by the Court to cross-examine the witness.
 
The Lord Chancellor may make provision for payment to legal representatives to be made out of central funds.
 
None of the provisions above has commenced yet, and it is yet to be determined when they might. It is not hard to see why that is, considering a significant number of regulations will have to flesh out these parts of the legislation.
 
Although this practice of limiting cross-examination in person has been present in criminal courts, the provisions of the Domestic Abuse Act gives a broader scope as to where this applies. In particular, previous conviction, injunctions or specified evidence will be sufficient to prevent cross-examination without any additional application.
 
One big difference compared to criminal courts, as I see it in the family courts, is that there will be more use of these provisions. The removal of legal aid for many private family law cases means that one or both parties are unrepresented in a good number of cases. Compared to 2013, there are 23% more cases where neither the applicant nor respondent had legal representation. In 2013, there were 41% of cases where both parties had legal representation whereas in July-September 2020, it was 21%. This also applies for cases where there is only one party represented.
 
At the same time, what we have is a rise in applications for Domestic Violence Remedy Orders such as non-molestation orders or occupation orders. In addition, there would be other cases where the parties may not be seeking such an order but domestic violence would be raised as an issue.
 
Overall, it would seem that a gap in legal aid will be covered by court-appointed advocates who step in to cross-examine on behalf of one of the parties. Added to that will be inevitable concerns from advocates who do are appointed for courts. From experience in criminal courts, appointments tend to be last minute, with conferences having to be done in the morning of the hearing, and pay is likely to be minimal.
 
Additional problems are likely to arise in private law cases where the court-appointed advocate has to work with a bundle already prepared for the lay parties.
 
Section 31(W)(7) makes it clear that the appointed legal representative will not be responsible to the party on whose behalf he or she has been appointed to cross examine. One can see how this might create a conflict in circumstances where the party in question, may have a different idea on how the case might be run; and also the extent to which the advocate will have a duty to put the case as the party they cross-examine for expects them to. When there is continuing representation in a case, there is an inherent trust built up over time which will not be the case here, as the advocate parachutes into a case having been appointed by the Court.
 
Overall, in first blush, it might appear to be a tried and tested mechanism from the criminal courts, but there will be different challenges, both for those implementing the measures and for the advocates who will come in to represent the parties. 
 
Ehsanul Oarith

Our Crime Team recently held a webinar on the Domestic Abuse Act which you can watch here (webinar starts at 5m30s).

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