Domestic abuse: a definition

The previous post on this topic promised a review of:

• The variety of ways in which the law treats alleged victims who are required to be cross-examined by their alleged abuser in the variety of jurisdictions in which the issue of domestic abuse may arise (considered by Lucy Reed in Pink Tape: When imperfect is the enemy of the people, so I’ll wait till the scheme is a little more advanced before commenting).
• Open justice or private hearing for domestic abuse? And why are crime, QBD and family courts different – if they are? – where mostly the common law is the same.
• Towards a wider ranging and more realistic definition of ‘domestic abuse’.

Domestic Abuse Act 2021, s 1 provides one definition amongst a number of what the law says is domestic abuse (‘personally connected’ is defined in s 2):

“(2) Behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—
(a) A and B are each aged 16 or over and are personally connected to each other, and
(b) the behaviour is abusive.

(3) Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));
(e) psychological, emotional or other abuse;
and it does not matter whether the behaviour consists of a single incident or a course of conduct.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.”

Section 1(3)(c) highlights controlling and coercive behaviour as discussed in the last post. Definition of ‘domestic abuse’ is one thing. Dealing with it in the courts is quite another. What is disappointing is that the 2021 Act procedurally does nothing to recognise that each single set of facts between two parties can give rise to often-bewildering sets of proceedings in different courts and under different sets of substantive law and of procedural rules. And thus an additional layer of potential for abuse by legal process can be created by the court administration which is supposed to have developed to cure it.

This post proposes means to try to improve the problems created by a variety of court proceedings; and of the same facts – potentially – being pleaded over and over again in different jurisdictions.

Courts with domestic abuse jurisdiction

Courts with jurisdiction over domestic abuse include:

• Where parties have cohabited any dispute proceeds under the Family Law Act 1996 Part 4 for a non-molestation or occupation order in the family courts and under Family Procedure Rules 2010 (FPR 2010) Part 10
• For reasons which are obscure the family law definition of domestic abuse is tucked away in the weak (in authoritative terms) form of a children proceedings practice direction, namely FPR 2010 PD12J para 4
• There are the variety of criminal remedies available for prosecution of allegedly abusive family members which proceed in the magistrates’ courts or Crown Court; and now including controlling behaviour under
• The Protection from Harassment Act 1997 produces its own quirky form of hybrid civil (county court) and criminal (magistrates’ courts) cause of action
• County court proceedings can be taken for damages for battery, assault and (of course) harassment
• And now, since the well-publicised Johnny Depp II case (in the US) and Vardy v Rooney proceedings in the Queen’s Bench Division, High Court (in English and Welsh law) there is the potential for defamation SLAPP (strategic lawsuit against [private] participation) proceedings for the wealthier man (see eg Lee v Brown [2022] EWHC 1699 (QB) (1 July 2022) Collins Rice J) (but see comments on this in Julie D,  Transparency Project, Defamation and domestic abuse – an update)

This post urges on anyone concerned in this field of mixed civil, family breakdown and criminal law to press for only one court which tries the facts; and – this is the truly radical bit – the court decides afterwards on the remedy from which help may be given to any complainant or which may be punished as criminal behaviour for the state.

This proposal turns around the normal formula for trial of an issue. At present, the complainant defines his or her form of action first and then takes proceedings in whichever court is thought to be appropriate: that is, mainstream domestic abuse in the family courts; civil proceedings in the county court, criminal proceedings in criminal courts; and, for the exotic and court time-wasters, defamation in the High Court. And yet through all this, like a tattered refrain, is a reminder of the fact that the facts alleged remain the same.

‘Fact-finding’; standard of proof – a domestic abuse court

Family courts have developed the concept of a ‘fact-finding hearing’ (a tautology, perhaps, since hearings must always find facts). A new domestic abuse court or tribunal could be set up, which would deal with facts as the first stage of any process.

Application for any domestic abuse remedy would be on a single simple complaint form. Orders would follow from the facts found by the court. Within limits imposed by fairness of trial, the court would have an inquisitorial function which might range outside parties’ pleaded cases (see Court of Appeal discussion in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ), [2022] 1 WLR 2681, [2021] 2 FLR 1116 (30 March 2021). Such an approach would also narrow the scope for yet further abuse – of either party – by multiplicity of court proceedings.

A means will have to be found to accommodate the fact that in law the standards of proof in civil and criminal proceedings are different. Without procedural violence to the fairness of any trial, the common law can surely accommodate this problem? Family courts routinely deal with contempt proceedings to the criminal standard. A domestic abuse court can surely find a way to deal with tort, criminal and family breakdown proceedings in one set of proceedings and each to an appropriate – in common law – standard of proof?

Open justice in domestic abuse courts

Should these new courts sit in private or in public? This post is as clear as it can be on this. There should be no immutable rules (as there are eg for family proceedings now: see eg FPR 2010 r 27.10). The starting point must be open justice; but within the scope defined by Civil Procedure Rules 1998 (CPR 1998) r 39.2(3) (replicated word for word by Family Procedure Rules 2010 (FPR 2010) r 70.30(3), save for a reference in the former at (f) to administration of trusts).

CPR 1998 r 39.2(3) may be taken to be a codification of the common law and reads:

“(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) …; or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.”

The common law can extend these categories if justice – not just its ‘administration’ – demands; for as Lord Devlin observed in Re K (Infants) [1965] AC 201, 238 speaking of the right of a judge in children proceedings – wardship, in that case – to receive an Official Solicitor report which was not disclosed to the parents:

“… A principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice.”

The extent to which a rule, fundamental or not, is to be treated as other than ‘a means to an end’ is a principle which must be in the mind of the court on any application for a hearing in private.

A rule which asserts privacy: ultra vires any rule-maker

Any concept that there be hard-and-fast family procedure or civil, criminal or other proceedings rules is foreign to the idea of a domestic abuse court. To the extent to which rule-makers adopt or adapt FPR 2010 rr 10.5 and 27.10 (private hearings for domestic abuse case under Family Law Act 1996 Pt 4 and for all but specified family proceedings (eg defended divorce)), these rules are starkly ultra vires (outside the powers of the rule-makers). No rule-maker has power to change the law. And the law is, that the default position in all common law proceedings is open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In family cases there may be many more instances where there are exceptions to this open justice principle (eg almost all children proceedings).

The test for those charged with setting up a domestic abuse court will be to find a formula which guides parties between the Scylla of open justice for all criminal and other domestic abuse proceedings (see eg Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 and Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591) and the personal requests for privacy in particular cases. The intent of this court will be different: that is to establish facts. In principle it should be open; but not always. It must be sensitive to the dictates of experience of development of the court and its jurisprudence.