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Domestic violence victims will no longer be cross examined by their perpetrators in the family courts
Measures came into force on 21 July 2022 finally banning perpetrators from cross-examining victims in the family court.
This was a practice already prohibited in the criminal courts. The ban also prevents alleged victims of domestic violence from cross examining the perpetrator.
Typically, this situation can occur when a parent has applied to the court for a child arrangements order and one parent alleges that the other is abusive and that abuse needs to be taken into account when deciding if and how they can spend time with their children. When these allegations are denied, the court can list a fact finding hearing where the court will consider the evidence, including both parties being cross examined, on the allegations. If the court finds that the abuse occurred, it is likely to impact any decision on child arrangements with the abusive party.
The ban comes into play if;
- 1. the alleged perpetrator has been convicted, charged or cautioned with certain offences; or
- 2. there is a protective injunction in place against the perpetrator; or
- 3. if there is specific evidence of domestic abuse; or
- 4. if the quality of the evidence is likely to be diminished if cross examined by the other party and the quality of the evidence would be improved with the ban in place; or
- 5. if it were to cause the alleged victim significant distress to be cross-examined by the other party more so than if they were to be cross examined by a different party.
If the tests at 4 and 5 above are met applying the ban must also not be contrary to the interests of justice.
If the alleged perpetrator cannot arrange a legal representative to cross examine the victim, the court can appoint a lawyer chosen by the court and paid for by the government to conduct the cross examination if it is in the interests of justice.
This ban is very much welcomed by the Law Society and many working in the field of domestic abuse. Particularly as more and more people are representing themselves at court and do not have a legal representative to cross examine the other party following the withdrawal of Legal Aid for the large majority of family cases. Prior to this ban, if the alleged perpetrator was not legally represented, the family courts had discretion to decide whether an alleged perpetrator could cross examine a victim. Where there are genuine allegations of domestic abuse, cross examination by a perpetrator could be very traumatising for a victim and, no doubt, a continuation of the abuse. It could also negatively impact the quality of their evidence for obvious reasons.
These measures were brought about by the Domestic Abuse Act 2021 (‘the Act’). In addition, the Act created a statutory definition of domestic abuse, which emphasises that domestic abuse is not just physical abuse, it can involve coercive and/or controlling behaviour, economic abuse and emotional abuse. The Act also introduces the presumption that domestic abuse victims are eligible for special measures in court.
It is hoped that these changes will make the court process less daunting for victims, help to prevent perpetrators from continuing the abuse by using court proceedings to do so and improve the quality of a victim’s evidence at court.
Written by: Yanoulla Kakoulli (Senior Associate Solicitor)