Callum Brook considers whether the new draft legislation is truly a “landmark” or simply regularisation of existing practice.
Amidst of all the chaos currently paralysing the governance of the country, the Government drops its perceived good news bomb: a “landmark” Domestic Abuse Bill.
Its design is simple: to address what the Government perceives to be a gap in the law around how Domestic Abuse victims are treated within the jurisdiction of family law.
Presently, how the family courts approach victims of abuse is contained within PD12J. A specific practice direction on finding of fact hearings, the forum where allegations of domestic abuse are aired. They are mostly deployed within the private law arena i.e. Section 8 proceedings around child arrangements.
PD12J requires the courts to undertake a grounds rules hearing, or at least consider ground rules in circumstances where an alleged perpetrator of domestic violence cross examines the victim. In an ideal world, all parties would be represented in such proceedings and appropriate questions would be asked by their advocates. We all know that is not the case and, since the lines were drawn on legal aid in such proceedings, most cannot afford representation.
Ground rules are a familiar concept to those of us who regularly practice in this realm; the principle being that alleged perpetrators should be required to write a sequence of questions they want to ask the victim and those questions should be then approved and potentially asked by the judge. Albeit less than satisfactory, it is on occasion the only way to ensure the alleged perpetrator can ask the questions they are entitled to ask to challenge the evidence. Hayden J provides his judgment on the pitfalls of such hearings PS v BP  EWHC 1987.
There is a balance to be found between the victim’s rights to a fair trial and the alleged perpetrator.
This is where the Government steps in. The Government’s announcement is that alleged perpetrators will no longer be able to cross examine victims but how hearings are going to be conducted is not particularly revolutionary.
The process proposed is one adopted by the criminal jurisdiction in the same circumstances, that being a court-appointed legal representative to cross-examine the victim. Some may say that it is difficult to understand why other jurisdictions are lagging behind the criminal jurisdiction in their approach to vulnerable witnesses and victims of abuse.
The difference this will make to the family jurisdiction is minimal. Whilst it protects the alleged victims, it ensures a fair trial for the alleged perpetrator. That being said, unrepresented parties are still left to navigate the other pitfalls of the jurisdiction and indeed the hearings that take place with that context.
It will be worth noting, in the long term, whether fewer findings are made when a party’s evidence is scrutinised properly in the context of cross-examination.
It can only be a good thing for those of us who regularly appear in such hearings in the long term. The text of the bill can be found here:- https://tinyurl.com/ycb3k8gr
Central Chambers has a family team with experience in representing applicants and respondents in complex Child Arrangements (section 8) proceedings involving allegations of domestic abuse.
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