Vardags Family Law Essay competition 2023/24 | Anisa Zina

Anisa Zina - Birbeck, University of London

To What Extent does the Human Rights Act help protect Women who are at risk of, or suffering from domestic abuse at the hands of an intimate partner?

Introduction

According to Refuge, 25% of women in England and Wales will experience domestic abuse in their lifetime, and on average two women a week are killed by a current or former partner. Estimated that dealing with domestic abuse costs the UK 23 billion a year, which on its own is a substantial incentive for the Government to tackle the problem.

This essay will aim to look at the use of the Human Rights Act 1998 (HRA) in terms of its efficacy in contributing to the protection of women and children who are suffering from domestic abuse. I go on to discuss the ramifications of the HRA act and ECHR on aspects of the legal process for domestic violence victims, focussing on access to justice, as it relates to legal aid and the use of the ECHR in child custody disputes, examining the “Paramountcy” principle.

State Obligation to Protect Victims

Choudhry argues: “One of the most profound duties of the State is to protect citizens from violence. The European Convention of Human Rights (upon which the HRA is based) imposes positive obligations on the State to protect those threatened with, or experiencing violence.  Article 3 of the HRA has clear relevance in cases of domestic violence (DV) but some academics have been open in their criticism of the government, suggesting that the UK is “failing in our international obligations””. Similarly McQuigg has argued the government response to DV has been “inadequate” and others have suggested that whilst the increased awareness of DV has led to attempts to improve policing procedures and decisions relating to prosecution – “further improvement is needed”. It’s hard to disagree on this point. ONS data for year ending March 2023 showed that over 898,918 recorded instances of DV resulted in only 39,198 convictions - a conviction rate of just 4.3%

One of the barriers preventing the widespread use of the HRA to seek protection against domestic violence is the requirement of Standing. Under section 6(1) of the HRA, public authorities have a duty to act in accordance with Convention rights ¹⁰which have been incorporated into domestic law. However, to bring proceedings when a claimant feels that an authority has failed in this regard, one may only bring these proceedings if they themselves have been a victim. Mcquigg points out that the requirement to have standing is restrictive in cases of DV because it is predominantly an unseen and underreported crime whereby a lot of victims will be unwilling or unable to engage in litigation. In both America and India, there is no “victim” requirement – with the Indian Supreme Court permitting relevant organisations to bring forward social action litigation, when individuals are unable to do so due to lack of “awareness, assertiveness resources or poverty”. Whilst Mcquigg suggests that widening the scope of Standing would allow the HRA to be used more effectively, they correctly draw attention to the fact the UK courts are prone to allowing a wide margin of defence to public authorities in relation to policing response, and the provision of social support to victims of DV.

Internationally, it seems there has been more success in using Human Rights legislation to hold public authorities to account, in cases such as Opuz v Turkey. In this case, Mr Opuz had attacked his wife and mother-in-law several times, including an incident where he ran over his mother-in-law, resulting in life threatening injuries. He received a fine. Years later he stabbed his wife seven times and again received a fine. Upon finding Ms Opuz and the mother trying to escape, Mr Opuz stopped a removal van, forced open the door and shot his mother-in-law dead. The case was argued using the ECHR as a breach of Article, 2, 3 and 14 Ms Opuz argued that the failure of the criminal justice system to protect her mother alongside the lenient penalties imposed for previous offences, violated her Article 2 rights. Astonishingly, the Turkish Government responded by saying they had tried to offer protection but had been hampered by the victims withdrawing complaints.

The challenges presented to the criminal justice system when a victim withdraws cooperation in cases of domestic violence are elaborated upon by Ellison, who argues that there is a “continued over emphasis” on victim testimony, particularly within the UK, and that this most often results in discontinuance of prosecution, even in serious cases. Her concerns are echoed by Crowther et al, who argue that by placing more responsibility on the individual, it leaves victims increasingly vulnerable and makes it easier for dangerous offenders to resist changing their behaviour.

In Opuz, an advocate for the claimant pointed out that DV victims are often intimidated into withdrawing complaints and the onus of responsibility lay with the State to hold the defendant accountable – withdrawal of a complaint should not automatically end a prosecution.

The Court found that in Opuz, the authorities could have foreseen a lethal risk and failed to take reasonable steps to mitigate, based primarily on a reluctance to interfere in a “private family matter” citing a worry that because the couple were living together, pursuing the case may infringe on their Article 8 rights. It seems perverse that authorities are reluctant to intervene in what is sometimes still seen as private matters, thus contributing to putting victims of DV at further risk.

Secondly, there’s interesting idea of a clash between ECHR/HRA rights. In a situation where Article 3 and Article 8 rights clash, it seems incredible that criminal justice agencies and perhaps the judiciary may place greater importance on Article 8, Indeed, this clash of rights is seen in child custody disputes where Article 8 rights of parents are often pitted against individual rights of the child and the rights of the child do not “invariably win out” – an approach which Choudhry has argued is correct if we look to the application of the European Convention of Human Rights in Strasbourg.

The Paramountcy Principle

Choudhry claims that the UK courts apply the overarching “Paramountcy principle.” This is codified in the Children’s Act 1989. The basic idea is that the child’s welfare automatically prevails over the rights of other family members. This stance has predictably led to discontent amongst fathers groups, given the historical reluctance of judges to separate children from their mothers, and given that the father is most often the one to leave the family home.

Choudhry suggests that the UK court’s approach differs significantly from that of the European Court of Human Rights, since they seek to balance the opposing rights (namely the welfare concerns of the child, with the Article 8 rights of the parents.) Choudhry argues that there is a conflict in the UK judicial approach because they are not correctly balancing the duties specified in S6.1 and 3.1 of the HRA. She submits that if we incline towards to the Strasbourg approach, the rights of parents/carers and children can gain a fair and transparent hearing. I have serious reservations about the validity of this argument. It is well established that the most dangerous time for a woman experiencing domestic violence, is when she tries to leave the relationship. Many academics have emphasised that child custody disputes are often used as a tool by abusers to maintain contact with and control over the mother. Indeed, Women’s Aid have conducted several surveys relating to contact arrangements where prior domestic abuse was a concern, and in those cases, 15% of children had been assaulted during contact visits. In a further finding (in a review of 29 cases) where children were killed as a result of contact – the contact had been court in ordered in five of those incidents.

In the interests of full transparency, I admit a level or unavoidable personal bias on this issue, having been a child from a home wreaked by 26 years of domestic violence, and experiencing firsthand how children were used as an excuse to initiate and maintain contact with the mother.

I see almost no justification in trying to balance the rights of any parent with a proven history of domestic violence (whether that be on the part of the mother or the father) and allow them the privilege of further contact with their children, particularly against the express wishes of the child. It is an entirely unnecessary and avoidable risk. Refuge argued that all professionals involved in child contact arrangements should take “no contact between children and violent fathers as the starting point.” Contact should only be arranged if of genuine benefit to the children, if the safety of the mother and children can be assured.

Reece points out that fear for child safety during contact visits is one of the main reasons for non-compliance with court orders. It’s important to note that non-compliance with Court orders can often lead to a negative representation of the mother as “unreasonable” and “vindictive” and courts need to go to great lengths to understand the complexities and potential consequences of imposing contact arrangements in families with a history of DV.

Whilst domestic violence charities such as Refuge and Women’s Aid have agreed that “safe contact” may be favourable for child wellbeing in some cases, and there seems to be a consensus that it is possible with stringent screening and effective risk assessment, there is also acknowledgement from other quarters that risk assessments in themselves can be problematic. Crowther notes that risk assessments are somewhat reliant on a belief that an offender can change. Risk assessments by their very nature are based on predictions which result in under/over stating potential risks, leaving victims without adequate protection and at the mercy of violent men.

With the above concerns in mind, the idea of diluting the paramountcy principle in favour of a Utopian ideal of adopting a “balanced” European approach, purely for the appeasement of an adult’s rights (vs that of an innocent child) is unforgivably irresponsible, given the potential consequences.

My misgivings are exacerbated by the twisting of the narrative by some father’s groups who have suggested that the risk to children lies in contact denial, rather than the granting of this right. They argue that the greatest risk lies in potential abuse committed by the residential parent’s new partner. Whilst I acknowledge that this is a serious concern, it does not bode well that they have worked so hard to minimise a phenomenon which is so serious-although thankfully, awareness appears heightened in mainstream media.

It is vital that both the HRA and the ECHR are not inadvertently used as tools to continue and compound domestic abuse against women and their children, and I fear that would be the outcome if Choudhry’s proposals on this matter received widespread approval in the UK courts.

I turn my attention to the case of Sheffield Council vs E. E was a 21-year-old woman with multiple disabilities. Sheffield City Council (SCC) discovered that E was associating and living with a 37-year-old man (S) who was a schedule 1 offender, with a substantial history of sexually violent crimes, and he’d previously been imprisoned for 8 years. Sheffield argued that E had the mental capacity of a 13-year-old girl, limited independence and was very vulnerable to exploitation.

The central issue for the Court was argued to be two-fold. The Council argued that the Court needed to assess E’s capacity to marry S (in particular) while E argued that the question was whether she understood the nature and responsibilities associated with the marriage contract.

Mr Justice Munby stressed that as E was over 18, the burden of proof was on SCC to prove that E did not possess the necessary capacity to marry. The defendants (E and S) chose to base their case on the protections contained within Article 12 of the ECHR. He went on to conclude that the question of whether E should specifically marry S was not the central issue but rather whether she understood the concept and responsibility attached to marriage in general. He was keen to stress that lives can be “enriched “by marriage and cautioned against setting the bar for capacity to marry too high, lest it operate as “an unfair, unnecessary and …discriminatory bar against the mentally disabled”. Academics are divided on his judgement in this case, and I’m inclined to agree and suggest that Munby has somewhat missed the crucial factor that distinguishes this case from others. E is potentially more vulnerable due to the nature of her disabilities. Munby argues rhetorically that it is not the court’s role to vet E’s suitors which holds some credence under Articles 8, 12 and 14 of the ECHR but as Herring points out, the courts regularly make decisions on other cases such as whether someone should live in a care home or with family and questions whether this is really that distinguishable, and indeed in this case the stakes may arguably be higher.

In my mind, Munby’s judgement is another example of the public authorities failing to step in to prevent harm, even when the opportunity has so clearly present itself before any significant harm has been inflicted on a potential victim. Whilst I understand the importance of Article 8 and 12, I think there needs to be a deeper understanding of the consequences of not prioritising Article 3 obligations which are deemed to be “absolute” rights.

In contrast, Barker and Fox pay particular attention to the relevance of S’s history noting:
 “Though we must not …ignore the possibility of S’s rehabilitation, it is reasonable to consider that a greater level of risk exists when an intended spouse has a number of convictions for sexually violent offences and is a Schedule 1 offender than when he is not.” They go on to argue that if S were to reoffend, the consequences for E’s safety would be “grave” noting that conviction rates for domestic and sexual violence are already “notoriously low” and often hampered when the victim has mental health or learning disabilities. This is a conclusion backed up by qualitative research asking women with learning disabilities about their experiences of domestic abuse.

In a genuinely gut-wrenching retelling of a case, one victim told of how her ex-partner phoned Social Services and threatened to kill the victim’s children, in revenge for her trying to leave because of domestic abuse. Due to her disabilities, and upon the ending of the relationship Bren’s children were removed from her care and adopted. Research cited in the same article found that women with disabilities were more likely to suffer intimate partner abuse but were less likely to be believed or taken seriously by authorities, who tended to deflect concerns about abuse, blaming likely distorted perceptions because of disabilities.

Though the HRA and ECHR exist to help protect some of the most vulnerable, it seems there is a genuine and pervasive reluctance on the part of public authorities and the CJS to invoke their use, often in fear of violating another qualified right such as Article 8. It seems all too often that authorities are only willing to step in once the irrevocable damage is already done.

If you combine this with the difficulties around victims reporting domestic abuse, and difficulties in accessing legal aid, it goes some way to explaining some of the statistics cited in the introduction and why conviction rates for DV remain so low.

In a rare example of when the ECHR appears to have been applied effectively, the failure to respond to DV constituted a breach of both Article 3 and Article 14 in TM and CM v Moldova Application No. 26608/11). Article 14 places a stronger obligation on the State to ensure there is protection from DV, thus making it more difficult for authorities to claim it was not reasonable to be expected to protect the victim.

Legal Aid 

There are several pertinent examples in Choudhry’s paper on the importance of access to Legal Aid and sufficient legal representation in the fight against DV. Most notably, the restrictions now in place due to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. (LASPO) (whilst increasing time limits for producing evidence of DV) has also simultaneously restricted eligibility for Legal Aid – thus limiting access to legal representation. Choudhry argues this is a clear breach of Article 6 and Article 8 rights.

Difficulties include a requirement to provide medical evidence of abuse signed by a GP, aside from the well established under-reporting of DV, there is often a significant wait and charge for this service which adds another obstacle to women attempting to flee from abuse.

Unless and until we ensure the prosecution process is as easy as possible for DV survivors, prosecution and conviction rates will remain shamefully low and positive progress offered by the use of the ECHR and HRA is severely undermined.

At present, some victims have argued that having to litigate in person and even cross examine their abusers has led to trauma of reliving the original victimisation. Chaudhry’s views on unrepresented litigants have also notably been reinforced by certain judges who have highlighted the time lost having to trawl through relevant documentation for themselves, in order to reach a judgement because the victims do not have access to professional legal representation.

Conclusion

There has been some progress by the Government and those in the criminal justice system towards tackling this difficult and dangerous issue. The creation of the Domestic Abuse Act 2021 is a positive step in the right direction. Overall, it is hoped that it will help to improve protection for those suffering, by offering support to escape abuse and seek justice, and the creation of a new offense for controlling and coercive behaviour is genuine progress.

Furthermore, there is work to be done to ensure long term funding and extension of social support measures to support victims trying to leave abusive situations. There needs to be a coordinated approach between the criminal justice system and local authorities to provide safe housing, access to funding and jobs and perhaps most importantly working with schools and social services to minimise the impact of abuse on children and those with special vulnerabilities, such as learning disabilities and mental health issues. 

With regards to the Police response and investigation of domestic violence it seems that the efficacy of provisions in the HRA and ECHRA are undermined by a lingering reluctance to interfere in “private family matters” and an over-reliance on witness testimony to charge and prosecute offenders, even in serious cases.