When a party to family proceedings alleges that the other party has subjected them to domestic abuse the court will want to investigate the allegations, to ascertain the truth.
This investigation will of course include taking evidence from both parties. This means that the alleged victim will have to give evidence in court, and be cross-examined on behalf of the alleged abusers. And if the alleged abuser has not had a lawyer, which is often the case, particularly as legal aid is not available to them, the cross-examination has up until now been carried out by the alleged abuser themselves.
Obviously, this can be extremely distressing for the victim, adding to the trauma that they have already suffered. In fact, many abusers use this cross-examination as a means of continuing their abuse.
Thankfully, victims are now to be spared the further trauma of being quizzed by their alleged abusers in court, under new laws which have just come into force.
Prohibition of cross-examination by alleged abusers
The new laws provide that the court may prohibit an alleged abuser from cross-examining, or continuing to cross-examine, their victim in four circumstances:
- Where the abuser has been convicted of, given a police caution, or been charged with, a criminal offence against the victim; or
- Where there is in force a protective injunction prohibiting the abuser from molesting the victim; or
- Where there is evidence that the victim has been subjected to domestic abuse by the alleged abuser; or
- Where none of the above apply, and it appears to the court that the quality of the evidence given by the victim will be diminished, or the cross-examination (or continued cross-examination) of the victim by the alleged abuser would be likely to cause significant distress to the victim - and the prohibition would not be contrary to the interests of justice.
Of course, the prohibition does not mean that the victim will not be cross-examined. That would be quite unfair to the alleged abuser, who must be given a full opportunity to oppose the allegations.
The new laws therefore provide that where a prohibition has been made the court may appoint a qualified lawyer to carry out the cross-examination on the alleged abuser's behalf, to ensure that justice continues to be done fairly for both sides. The costs of the lawyer will be paid for by the state.
The Ministry of Justice say that hundreds of lawyers have already signed up to fulfil this role, although the Law Society has expressed concern that the way the scheme has been implemented, and the remuneration on offer, means there will be insufficient lawyers to undertake the work.
Commenting on the new laws, Justice Minister Tom Pursglove MP said:
"Going to court about family issues can be a traumatic experience, so victims of domestic abuse shouldn't face the extra torment of being cross-examined by their abuser.
"This is already banned in criminal trials and from today it will be banned in family and civil courts too - to protect victims, ease the stress and make sure they get a fair hearing."
Better supporting victims of abuse
The new laws, which are contained in the Domestic Abuse Act 2021, are part of government efforts to reduce the trauma of appearing in court and to ensure that victims are better supported. These efforts include introducing special measures in family and civil courts, such as screens and separate entrances, to minimise stress and help witnesses to give their best evidence.
The Government has also recently published guidance upon the working of the Act for those helping victims of abuse, including the police, healthcare practitioners, and local authorities. The guidance sets out the Act's wide-ranging definition of domestic abuse, which includes not just physical violence, but also a range of other behaviours, including controlling or coercive behaviour, emotional, and, for the first time, economic abuse.
It is hoped that the guidance will ensure that the complexity of domestic abuse is properly understood, to support a coherent 'whole system' response to supporting victims and survivors, including children.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.