FiLiA RESPONSE TO THE DRAFT DOMESTIC ABUSE BILL
FiLiA response to the report of the Joint Committee appointed to consider the
Draft Domestic Abuse Bill report.
By Sally Jackson, FiLiA COO and Specialist in Violence Against Women and Girls
We welcome the committee’s report which highlighted its thoughts around the 9 areas that will require primary legislation to implement, these include:
a statutory definition of domestic abuse;
establishing the office of Domestic Abuse Commissioner and setting out the Commissioner’s functions and powers;
providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
enabling domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
ensuring that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences. This is required to ensure that the UK is compliant with the Council of Europe Convention on preventing and combating violence against women and girls (‘the Istanbul Convention’).
We will address these in turn
The statutory definition
We agree that the Bill is amended to provide that the following types of abuse are always treated as domestic abuse: Female Genital Mutilation; forced marriage; honour-based crimes; coercive control related to immigration status; and modern slavery and exploitation. Exclusion of these would have a discriminatory effect on our black and minority ethnic sisters experiencing abuse. We agree that although courses of behaviour are essential to recognise, the statutory definition should be redrafted to make it clear that single occurrences may constitute domestic abuse, and it is not necessary to prove a “course of behaviour”. In making this recommendation we specifically have in mind abusive acts such as abandonment, again this particularly pertinent to black and minority sisters.
We welcome the inclusion of economic abuse and recognise the wide and long-term effects this can have on women’s lives. We agree with the recommendation that the Government conduct a specific review on how to address domestic abuse in relationships between under 16-year olds, including age-appropriate consequences for those displaying abusive behaviour. Children should not be labelled as perpetrators and consequences should seek to educate and change behaviours. We also agree that children should be recognised as victims/survivors in their own rights when their parents or care givers are or have been subjected to domestic abuse. Finally we strongly believe that the definition should recognise that domestic abuse is most often male violence against women and agree that the statutory guidance the Government is committed to issuing on the operation of the statutory definition of domestic abuse should require public authorities to acknowledge the disproportionate impact of domestic abuse on women and girls when developing strategies and policies in this area.
Domestic Abuse Commissioner, function and powers
We agree that there needs to be greater integration of the legislation and policies relating to domestic abuse and violence against women and girls more generally and that this be reflected in the remit given to the Commissioner.
We also agree that the role of Commissioner should be full time, and that, within a year of the designate Commissioner starting their role, they or, if then in place, the statutory Commissioner should publish an assessment of the financial and personnel resources required to carry out the role. The Commissioner will need to work with multiple agencies, national and local, in areas such as healthcare, housing and education. While the draft Bill would require public authorities to reply to any recommendations addressed to them in a report by the Commissioner, it is silent about what would happen if the authorities failed to make the recommended changes to their practice. We were told that it was undesirable to confuse the role of commissioner with that of an inspector. We accept this, but we think it unacceptable that service providers might be able simply to ignore the Commissioner’s recommendations. The role of enforcing best practice properly lies with Ministers, but currently there is no duty on government departments to co-operate with the Commissioner. We recommend that Clause 13 of the Bill be amended to place this duty on government departments. This would give Ministers a clear mandate to ensure that public sector commissioners and providers change their behaviour.
It is clear that there is a potential for the Home Office to experience serious conflicts between its work in relation to domestic abuse and its responsibility for immigration control. We question whether the Commissioner could really be independent when considering the needs of migrant women. We agree a Cabinet lead would enable a cross-departmental approach.
Domestic Abuse Protection Notice and Domestic Abuse Protection Orders
Whilst we do not agree that DAPN/DAPOs provide an overarching response to protecting women We believe attaching positive requirements to Domestic Abuse Protection Orders has the potential to enhance the protection given to victims. The practicalities of the scheme, however, do not appear to have been thought through. Previous trials with alcohol monitoring have not been successful or cost effective. Without funding for training or an infrastructure for monitoring compliance, use of positive requirements will be very limited or run the risk of making things worse. The simple question which the draft Bill does not address is which organisation or organisations are to be responsible for the monitoring of positive requirements.
We strongly recommend that applications for Domestic Abuse Protection Orders be free to the police, with appropriate funding to HM Court and Tribunal Service.
We agree that the Government should 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, we anticipate 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.
Prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts
The proposal to prevent the perpetrators of domestic abuse themselves from cross-examining victims in the family courts is a welcome and overdue. We are pleased that it is accompanied by publicly-funded representation for perpetrators of abuse where necessary in the interests of justice. However, we are 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. We agree 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.
Representing the voice of children and ensuring that decisions are made in their best interests is the primary responsibility of CAFCASS when providing reports to the Family Court under s.7 of the Children Act 1989. However, we are aware of research that details ongoing and significant concerns that CAFCASS is not sufficiently representing the voices of children who do not wish to have contact with their Father where domestic abuse is a factor. We agree that it is time for the Government to conduct a thorough review of how CAFCASS can improve its obligations in this regard.
Statutory presumption of special measures in the criminal courts
We also welcome the proposal that complainants in criminal proceedings for an offence involving behaviour that amounts to domestic abuse will be automatically eligible for special measures and that this provision be extended to victims of domestic abuse appearing in family and other civil courts. We are pleased that the Government’s comment that this is already possible under family court rules is overridden by the persuasive evidence about poor implementation. We agree that the provision for special measures in the family court’s rules and practice directions is put on a statutory basis, and that a single consistent approach is taken across all criminal and civil jurisdictions. This is particularly important given the worrying Government’s plans for a reduced court estate, which could provide another barrier to participation for vulnerable victims.
Domestic abuse offenders to be subject to polygraph testing
Our main concern is that that testing does not become a substitute for careful risk analysis or for other evidence-based interventions with perpetrators. They are not admissible as evidence and not 100% accurate so more training and resources around risk management and proactive monitoring would be better use of limited resources.
Domestic Violence Disclosure Scheme being put on a statutory footing
Clare’s Law as it is better known has not been used as much as envisaged and the statutory footing should increase consistency across police forces. It is important that resources are provided so that when someone is informed under ‘Right to know’ they are supported following that disclosure. For ‘Right to ask’ this must be a swifter turnaround of information to make it more effective, again support should be available to survivors to help them understand the result. Its is especially important that a lack of conviction does not guarantee a lack of abusive behaviour.
A secure lifetime or assured tenancy
Currently there are too few places in refuges or supported housing and access to specialist services is limited. We welcome the Government’s announcement that it plans to introduce a statutory requirement in the Bill for accommodation support services in England to be provided for survivors of domestic abuse, and its commitment to provide an adequate level of additional funding to local authorities to enable them to comply with the new duty
The proposal deals with the granting of secure tenancies in cases of domestic abuse. This would require local housing authorities to grant a secure tenancy to victims being rehoused as a result of domestic abuse who previously held a secure or an assured tenancy (other than a shorthold tenancy) with a private registered provider of social housing or a housing trust. This is welcome as housing and safe accommodation is such a huge issue for women escaping abuse. There could therefore be an unintended consequence of a statutory duty, encouraging local authorities to bring services in house, deliver them cheaply and require survivors to disclose to local authorities in order to access support. With a shortfall of 1,715 bed spaces in refuges in England, far short of the recommended one family space per 10,000 head of population, accommodation is one of the greatest obstacles in women leaving. Its essential that funding restrictions and localism doesn’t prevent support and accommodation from being provided where needed.
Compliance with the Istanbul Convention
The Government still needs to provide clarity on how non- accommodation based support services such as community-based advocacy and IDVA services and open access advice, helpline and counselling support services will be provided and funded under the new statutory duty proposed by MHCLG and what arrangements will be made for the national provision of highly specialist services. We agree that the Government must work closely with refuge providers, local authorities and other stakeholders to ensure that these essential services are included in future service commissioning plans in order to ensure full compliance with the Istanbul Convention in this regard.
Some women with insecure immigration status are faced with the choice of staying with a perpetrator of abuse or becoming homeless and destitute because they do not know how to get help or may not be entitled to support and may be at risk of detention and deportation. Because of this vulnerability, immigration status itself is used by perpetrators of domestic abuse as a means to coerce and control. Migrant women experiencing domestic abuse are effectively excluded from the few protective measures contained in the Bill and that this was not compliant with the requirements of Article 4, paragraph 3 of the Istanbul Convention which requires protection to be provided without discrimination on any ground, including migrant and refugee status.
We support the Step Up Migrant Women campaign, led by the Latin American Women’s Rights Service, calls for secure, safe reporting mechanisms and recommends “the establishment of a firewall at the levels of policy and practice to separate reporting of crime and access to support services from immigration control”.
The provisions barring women from having recourse to public funds can prevent some victims of domestic abuse with uncertain immigration status from accessing refuges and other support services. We agree that the Government should explore ways to extend the temporary concessions available under the DVR and DDVC to support migrant survivors of abuse, to ensure that all of these vulnerable victims of crime can access protection and support whilst their application for indefinite leave to remain is considered by the Government. The Government must consult on the most effective criteria to ensure such a measure reaches the victims it is designed to support and that it should extend the three-month time limit to six months for the DDVC in the light of the specific difficulties for victims highlighted by Southall Black Sisters. The Home Office already publishes guidance on the evidence of domestic violence which is required to support applications under the DVR, and expect these protocols to continue to be applied. We agree to the inclusion of an additional clause in the Bill, imposing on public authorities dealing with a victim or alleged victim of domestic abuse, or making decisions of a strategic nature about how to exercise functions, a duty to have due regard to the need to protect the rights of victims without discrimination on any of the grounds prohibited by Article 4, paragraph 3 of the Istanbul Convention.
Other issues mentioned in the response
We agree that the government must make changes in the way universal credit is paid to ensure that split payments are made as standard in cases of domestic abuse
Changes to the bail regime in the Policing and Crime Act 2017 were short sighted, the result has been that pre-charge bail is no longer an effective protective measure in domestic abuse cases. While there may be an issue with police training and guidance on the operation of the reforms, 28 days bail combined with a rigid test for any extension does not take into account the need to protect victims that the Government urgently bring forward legislation to increase the length of time suspects can be released on pre-charge bail in domestic abuse cases. We also support a rebalancing of the test for allowing extensions to pre-charge bail to give full weight to the protection of the victim from the risk of adverse behaviour by the suspect, thereby balancing the rights of the victim with those of the suspect.
We support the recommendation that the Government amend the Policing and Crime Act 2017 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.
We agree that the Government urgently considers the proposal that a new clause be added to the Bill to create a statutory defence for women whose offending is driven by their experience of domestic abuse.
Government must also ensure that there is sufficient provision of quality assured specialist interventions for the full spectrum of perpetrators, across all risk levels. This will require an adequate level of funding and cooperation with expert providers.
Imkaan’s report of December 2018 showed that while in 2014 perhaps around 30% of local authority funding went to BME specialist buy-in for organisations, by 2016 that was close to zero per cent. At the moment, the Big Lottery Fund is effectively providing the support for the BME specialist sector. This is an appalling reflection for so called multi-cultural Britain in 2019. We agree with Southall Black Sisters call for the development of a comprehensive strategy that focused on protection for all abused migrant women similar to the Violence Against Women and Girls strategy.
Joint Committee on the Draft Domestic Abuse Bill
FiLiA is available for comment. Please contact sally@filia.org.uk