Coming soon: the Domestic Abuse Bill
Each unhappy relationship is unhappy in its own way. Sadly for some, emotional and physical abuse is an every-day reality. A combination of fear, loyalty and coercion often prevents action, much to the disbelief of family and friends.
Words like these seem extraordinary in 2018. Surely no one need live like this? The reality is that it is only in the very recent past that both criminal and family law have fully evolved to provide real recognition and protection for adults and children in abusive relationships.
Victims of domestic abuse don’t have much to be thankful for but it is good news that the law is finally on their side.
A new criminal offence of Controlling and Coercive Behaviour in an Intimate or Familial Relationship was created three years ago with The Serious Crime Act 2015, which was a game changer. Punishable by up to five years in prison, 2018 sentencing guidelines for those convicted of this offence recognises that the crime is all the more serious for having been committed in a home, between people in a relationship.
Coercive behaviour is defined as “a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour”.
Controlling behaviour is defined as “a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”
The Home Office recently published guidelines listing characteristics of behaviour that might constitute an offence and this really represents a departure from historic views of what constituted domestic abuse. The guidelines include:
In addition late last year (November 2017), the family Court system was also given directions about how to engage with abusive relationships in cases involving children, essentially adopting the same definitions of controlling and coercive behaviour that applies for criminal law enforcement agencies.
Recognition was given to the fact that "domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents." The result is that Family Courts judging an abusive parent may put restrictions on or, in extreme cases, eliminate their ability to spend time with their children.
So I believe we have come a long way in recent years. The old expression “domestic violence” has been superceded by the recognition that “domestic abuse” can be psychological, sexual, emotional and financial as well as violent. Domestic abuse is now seen as more serious than abuse and violence in a non-domestic environment.
On top of all this we have a greater understanding as a society of this terrible behaviour which encourages friends and family to help victims.
There are two areas however where victims continue to be let down. Whilst the police have received improved training, we still hear and see many instances where they lack the resources to tackle problem perpetrators effectively. Everything depends on the interest and time of the investigating officer, meaning some victims may see real action and others the opposite. Sadly in many ways the law has moved ahead of the limits of police resources to tackle the issue according to my criminal lawyer colleagues.
We are also not yet at the stage where divorce courts make awards to victims of abuse to compensate for the treatment they have suffered. This area remains unchanged. The division of assets and income of a marriage are usually determined based on needs save in exceptional cases. However it will be interesting to see over time if this evolves. Some think family law should not be above trying to influence or condemn behaviour in relationships by making it clear that domestic abuse could hit the pocket of the perpetrator. It is likely that we will see an increase in the victims of abuse asking the Courts to take conduct into account when making awards on divorce.
First published in The Divorce Magazine, April 2018.
See also our previous blogs on the related topics below and our pages on divorce involving personality disorders and addiction; and domestic abuse and harassment for further information.
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