The law on domestic violence had a major overhaul last year but has yet to be implemented. Lucy Trevelyan hears specialist lawyers express concerns and optimism for the future


Domestic violence, according to Home Office figures, accounts for at least 16% of all violent crime, and has more repeat victims than any other crime – on average there will be 35 ‘hits’ before a victim calls the police. It is also estimated to cost more than £23 billion a year through suffering, time off work and services such as health and criminal justice. No wonder it is high on the government’s priority list.


Numerous schemes have been hatched, such as specialist domestic violence criminal courts piloted in Croydon and Caerphilly, and plans are afoot to create an integrated domestic violence court dealing with civil and criminal matters. There has also been a recent pledge to screen all pregnant women for domestic abuse.


Nick Longford, chairman of Resolution’s domestic abuse committee, says: ‘There needs to be comprehensive screening within the health service for domestic abuse, especially in pregnant women, since statistics show that it goes up during pregnancy. Women can find it difficult to report this sort of thing themselves, so anything that shows support from society at such a vulnerable stage has got to be a good thing.’


Last November, the Domestic Violence, Crime and Victims Act – heralded by Solicitor General Harriet Harman as ‘the biggest overhaul of domestic violence legislation for 30 years’ – received Royal Assent. Key aspects of the Act include making breach of a non-molestation order an arrestable criminal offence; making common assault an arrestable offence; allowing cohabiting and same-sex couples the same access to restraining orders as married couples; and enabling the court to make restraining orders in relation to any criminal offence, on conviction or acquittal.


However, although originally scheduled to be implemented in April 2005, none of these new provisions is yet in force in England and Wales, and it is not clear when they will be.


Mr Longford, a partner at Newmarket firm Rustons & Lloyd, says: ‘We have been waiting with bated breath for these measures, but they haven’t completed the judges’ training yet, so we still haven’t got a start date.’


Some lawyers have concerns about the content of the Act. Elizabeth Woodcraft, a barrister at Tooks Court chambers in London, says: ‘Judges will no longer be able to attach the power of arrest to non-molestation orders, on the basis that the new police powers in relation to common assault will be sufficient. Breach of a non-molestation order will be a criminal offence carrying a potential sentence of five years. Human rights issues aside, many women will not want to put their men at risk of such a punishment.’



Mr Longford says that since most family law practices have no criminal branch, there are concerns that when a non-molestation order is breached and a case becomes a criminal one, the relationship between victim and family lawyer will be at risk.


There are also concerns among the judiciary, he says, about the different burdens of proof within the two systems: ‘An injunction can be granted on the balance of probabilities but, if there is a breach, it becomes a criminal matter, and they can only be convicted if the offence is proved beyond reasonable doubt.’



However, James Copson, a principal in City firm Withers’ family team, does not see any problem in the switch from the civil system to the criminal one in the event of a breach of a non-molestation order: ‘If you are going to send someone to prison, you have got to have the clearest evidence. For it to go to the criminal system is probably preferable, as it is better equipped to deal with it than family law, especially when you’re talking about someone’s liberty.’


He adds: ‘Frankly, I doubt that breaches will be taken up by the police much. They have many demands on their time and such breaches will be swept under the carpet rather than them doing the paperwork.’


He says that although the fact that progress is being made is laudable, some of the causes of domestic violence – such as housing, education and health – also need to be tackled.


‘It’s more of a social policy approach,’ Mr Copson adds. ‘There needs to be a review of the whole system. What we’re doing right now is putting a sticking plaster on it.’


He says devices such as non-molestation orders and occupation orders taken out against fathers can have a severe knock-on effect for the family: ‘Domestic abuse orders can be obtained quite quickly. The mother might then say “no” to contact and the father has to go for a contact order, which can take months. This leaves the father in a difficult position but, most importantly, who suffers? The child.


‘One of the things that [campaign group] Fathers For Justice has done is alerted courts to the issue of how contact can be used and manipulated to the detriment of the children. In future, I hope courts dealing with contact disputes will be more understanding of what comes next when an application is made for a non-molestation order. Contact should be dealt with straight away.’


Wendy Hewstone, a solicitor at Southampton law firm Access Law, says the attitude of the police towards domestic violence has to change: ‘We need more criminal prosecutions for domestic violence, which despite being as much of an assault as any other, is often treated as a lesser offence. We still have people coming to us who have been told by the police to obtain an injunction, rather than the police conducting an arrest and criminal investigation.’


Crown Prosecution Service research shows that the piloted specialist domestic violence courts helped increase the number of incidents reported to police that resulted in a trial, reduced the number of cases dropped before a case came to court, and increased the number of convictions.


The scheme, which has seen domestic violence cases fast-tracked and clustered together so that the courts run more effectively, is now being extended to 25 court areas.


On the back of these pilots, the Director of Public Prosecutions, Ken Macdonald QC, this month launched a good-practice guide for prosecutors who deal with domestic violence cases. It sets out ten points of action and includes recommendations for improving partnership with statutory and voluntary agencies and enhancing community engagement (see [2005] Gazette, 17 November, 5).


Ms Hewstone says: ‘I think this guide is very helpful. Two women are killed every week by partners or ex-partners, and practical measures are needed to improve prosecutions and the protection of victims.’


She says specialist domestic violence courts need to have fully trained magistrates sitting all the time to hear the case, and ‘they will need to be able to make more rapid decisions without their reasons being typed up, to reduce delay’. There should also be sufficient interview rooms so that the victim can be safely separated from the perpetrator, she adds.


Ms Woodcraft has some concerns about proposals to create a combined domestic court which would allow the same judge to deal with criminal and family matters. The plan is to make the civil district judge up to a deputy district judge for the criminal matters.


She says: ‘I am concerned whether the gravity of domestic violence will be diminished by removing it from regular courts, so that it is seen once more as purely a “domestic”. Family law is seen as “women’s work” and thus less important – is that how domestic violence courts will be viewed?’


Mr Copson says domestic violence is ‘not a gender issue, it’s a family issue which affects more than women and children’, and that the issue of violence against men is often ‘swept under the carpet’.


‘Men have got a number of problems when it comes to reporting domestic abuse,’ he says. ‘There’s the fear of embarrassment and ridicule, but the greatest fear tends to be that of losing their children – especially if the children are young.’


Melanie Johnson, a barrister at 1 Pump Court and co-author of Blackstone’s Guide to the Domestic Violence, Crime and Victims Act 2004, says the number of domestic violence cases has remained fairly steady, but she has noticed an increase in the number of orders applied for by the wider categories of people who, following the implementation of part IV of the Family Law Act 1996, for the first time became able to seek assistance from the courts.


‘You get quite a lot these cases – for example, teenage boys abusing drugs, going to their parents and being so abusive that they seek protection. It’s heart-breaking. For a mother to have to take legal action against her own son is just awful.’


Ms Johnson says lawyers dealing with domestic violence victims need to try and understand the psychological damage domestic abuse can cause their clients.


‘It can be quite frustrating when they go back to an abusive partner, but you have to try to understand the psychological impact; it’s not always easy for them to get away first time.’


And the biggest problems of dealing with domestic violence cases? Darren Matthews, an associate solicitor at Gregory Abrams Davidson in Liverpool, says: ‘Time management and general logistical difficulties are the biggest problems, not to mention respondents’ “flexible interpretation” of orders to suit their purposes. Dealing with emotional and frightened clients is often challenging, but ultimately rewarding.’


Lucy Trevelyan is a freelance journalist