The law on domestic abuse and violence was updated in the UK on 29 April 2021 with the introduction of the Domestic Abuse Act 2021 (DAA). The DAA is a significant piece of legislation that provides protection for survivors and victims of domestic abuse and violence and strengthens measures to tackle perpetrators. The Act also provides assistance for organisations and lawyers working with those affected by domestic abuse.
Domestic abuse is legally defined for the first time in the DAA. It is often misunderstood that for domestic abuse to have occurred that there has to be physical violence. The DAA’s reference to other forms of abuse, such as economic abuse and, more broadly, coercive control, aims to highlight the other forms of abuse that often go unnoticed because they are less visible.
This new definition of domestic abuse reflects the everyday realities suffered by survivors of domestic abuse more accurately. A shift towards an understanding of domestic abuse as a sustained pattern of behaviour designed to remove a survivor’s personal autonomy will aid the understanding of the courts and the public in relation to the true nature of domestic abuse.
Realising the reality of domestic abuse includes recognising that abuse does not end when the victim is separated from their abuser. In fact, risk of fatal harm to a victim is at its highest post-separation. The DAA acknowledges post-separation abuse, highlighting that an ex-partner or relative could still perpetrate abuse even after the victim has separated from their abuser.
The DAA introduces Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs). In practice, these should replace Domestic Violence Protection Notices (DAVNs) and Domestic Violence Protection Orders (DAVOs), such as non-molestation orders. The new protections will work very similarly to the old ones.
An advantage of the new DAPOs is the introduction of positive requirements. For example, perpetrators of domestic abuse could be required to attend a behaviour change or alcohol misuse programme. Breach of a DAPO is a criminal offence with a maximum penalty of five years’ imprisonment, a fine, or both. Breaches may also be dealt with in civil proceedings, which is important in cases where the survivor may not want the parent of their child(ren) imprisoned.
The DAA also reinforces protection for victims and survivors in court. In the family and civil courts, a perpetrator is now prohibited from cross-examining the victim. This is crucial, because cross-examination is often incredibly intimidating for a survivor and has been viewed as a continuation of abuse. Cross-examination is more prevalent in criminal courts. Here, the DAA ensures that victims of domestic abuse are automatically eligible for special measures provided by the court during proceedings. These measures include providing evidence via a live video link. This avoids any direct contact between a survivor and their abuser.
It is hugely important that the DAA recognises children as victims of domestic abuse when they see, hear or experience domestic abuse. Recognising and acknowledging the experience of a child helps to validate that experience. Domestic abuse has a devastating impact on a child – an impact that persists through the child’s lifetime.
It is hoped that the inclusion of children as victims of domestic abuse in the DAA will ensure that the perspectives of children will be considered more effectively. One example of this is in post-separation disputes over contact. The UK currently has a “pro-contact culture”, meaning that in over 99% of cases an order will be made that means that a child must remain in contact with both of their parents.
Empowering children to have their voices heard, and respected, could reduce the risk of a child continuing to be affected by domestic abuse post-separation. The inclusion of children in the DAA also acts as a signal to the government that more funding is required for children’s services to be able to support child victims and survivors of domestic abuse.
The DAA introduces a new offence of non-fatal strangulation, a result of tireless campaigning by organisations such as Centre for Women’s Justice. The DAA also extends “revenge porn” offences to include threats to disclose intimate images with the intention to cause distress. These new offences shine a light on less obvious methods used by abusers to exert fear and control over their victim. In some instances, they can prove a useful marker to prevent further harm, such as homicide, from occurring.
The DAA also extends the ability of a court in England and Wales, Northern Ireland, or Scotland to prosecute certain crimes committed outside of the relevant jurisdiction by a UK national or a person habitually resident in that jurisdiction. This includes offences relating to bodily harm and injury, which often characterise cases of abuse. Therefore, even if the act is legal in the country in which it was committed, the perpetrator will not be able to escape punishment.
The DAA is a landmark piece of legislation that symbolises a step in the right direction. It defines domestic abuse, acknowledging how broad this abuse can be and identifying that abuse does occur post-separation. It crucially recognises children as victims of domestic abuse. There are other positives to the Act, for example imposing new duties on local authorities in England to provide support to victims of domestic abuse, and the creation of a new Domestic Abuse Commissioner role, currently filled by Nicola Jacobs.
Beyond the legislation, the Government is committed to increasing investment into domestic abuse training for agencies and professionals who respond to domestic abuse cases. This is vital, as an effective way of stopping domestic abuse is to prevent it at its source. In addition to this, funds are being used to develop national guidance for police on serial and repeat perpetrators.
However, the Act has room for improvement. It fails to adequately protect migrants fleeing abuse who do not have a stable visa status. This leaves many victims without any access to benefits and accommodation when they need it most. The Act also misses the opportunity to create a register for serial perpetrators of domestic abuse and stalking – a register would be a very simple and potentially invaluable safeguard against preventable harm.
An Act and its promises are only as impactful as the resources and funding which support it. There is still a significant lack of resources in this area. More investment is required to deliver the advice required by victims of domestic abuse. It is this advice that can, and has, transformed the lives of countless adult and child survivors of domestic abuse.