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  • Writer's pictureDurham Pro Bono Blog

Abuse is not Love : A Change of Heart is Required

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.

What is the Current Law?


Despite the current law providing victims with numerous avenues through family, civil and criminal legal frameworks this assemblage, introduced in the 1990s, results in complexity and confusion that is even leading to uncertainty and difficult among the leading practitioners. Victims can apply for protection through family or civil courts for remedy in the form of an injunction or the hope of receiving compensation however often times this does not work due to the perpetrator’s lack of financial means. [1]


Under criminal law, historically a perpetrator could only be convicted to limited cases involving actual violence through the Offences against the Persons Act 1861 or non-violent course of conduct through the Protection from Harassment Act 1997.[2] There had been a reluctance on the part of the judiciary to interpret the Protection From Harassment Act 1997 in a manner that would allow for coercive or controlling behaviour within a relationship.


















Photo credit:

Ealing News Extra' ('I escaped domestic abuse before he killed me', 14 November 2018)<http://ealingnewsextra.co.uk/features/abuse/> accessed 4 December 2019


Action speaks louder than words:


Despite, the UK Government’s recognition of the problem in political campaigns, their actions in recent years demonstrate a weak attempt at providing sufficient protection. In 2015, there was an acknowledgement of the difference in forms of abuse and the vast power imbalances through the introduction of section 76 of the Serious Crime Act which introduced a new offence in criminal law that targeted ‘controlling or coercive behaviour in an intimate or family relationship.’ In 2019, there was another attempt made through the ‘landmark’ draft Domestic Abuse Bill. It provided new legislation that, admittedly, did further acknowledge that domestic violence extends beyond purely physical abuse with the introduction of the first ever statutory government definition of domestic abuse to specifically include economic abuse and controlling manipulative non-physical abuse.[3] The rationale backing it seemed to want victims to understand what constituted abuse - for them to realise and understand that abuse is not love. This realisation would allow for more victims to come forward.


Additionally, it aimed to introduce special measures in criminal courts to provide more support and less trauma whilst giving evidence. These would be measures such as separate waiting rooms, different entry and exit times and the opportunity to give evidence over video.[4] Nevertheless, the bill fell as a consequence of the dissolution of Parliament meaning the next Government will have to go back to the drawing board once again. This may be seen as a setback to some but on the analysis of the content of the Draft Bill it has acted as more of a blessing. Hopefully, the next Bill will go even further to afford warranted protection.


A change of heart is needed:


What is needed is a change of heart and a clearer understanding of the full impact that abuse has on a victim and their children’s lives. Women’s aid argued that the legislative proposals need to address all aspects of a victim’s life, and not just focusing on the conviction of the perpetrator, but across children and the family courts , housing, immigration, and the welfare system.[5] For instance, there needs to be special measures in place in family courts and not just criminal courts, where often victims prefer to bring claims due to its closed court setting.


Women’s aid studies have argued that abuse in relationships is a result of deep rooted gender inequality and oppressive social constructions of the family, and that, the culture and environment of a family court only reinforces these inequalities and oppressive social constructions. [6]

Furthermore, victims within the family court process do not feel like their human rights are protected by the family courts.

For instance, many victims felt that the process of cross examination had allowed former abusive partners to treat then in a degrading manner, violating their right under Article 3 to freedom from degrading treatment.[7] Whilst others felt that their and their children’s right to privacy and family life under Article 8 were breached as a result of unsafe contact orders involving their children.[8]


Furthermore, the UK is yet to ratify the Istanbul Convention under the Council of Europe, a convention that attempted to prevent and combat violence against women. It is the first legal instrument that exists to do so, against crimes such as female genital mutilation and forced marriage. [9] The UK signed the convention in 2012, yet seven whole years later, it has yet to ratify it. As a result, it has categorised itself in a minute group of European countries with the likes of Bulgaria who have opposed its ratification whilst the rest of western European countries have all ratified it.


This sense of carelessness is no longer justifiable –

there is an increasing issue in our country. In order to address the issue, there needs to be an introduction of new legislation that goes far further than that proposed in the Domestic Abuse Bill 2019 to at least extend further protection to family courts. A real change of heart would be for the Government to introduce a VAWG Bill and ratify of the Istanbul Convention. However, in order for any new legislation to offer optimal protection to victims, the government must also put in the necessary funding into legal aid, support services and education, together with a strong judicial attempt to ensure human rights of the victim and children are considered. [10]

Gemma Dowling (Family Law)


SOURCES


[1] K Richardson, ' Two worlds apart: a comparative analysis of the effectiveness of domestic abuse law and policy in England and Wales and the Russian federation ' [2019] 83(5) The Journal of Criminal Law <https://doi.org/10.1177%2F0022018319858478> accessed 3 December 2019


[2] Ibid 324


[3] “Draft Domestic Abuse Bill” HL Paper 378 (2017-19), cl 1(3)


[4] Ibid 147


[5] “Women’s Aid Briefing for Second Reading of the Domestic Abuse BillWomen’s Aid <https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2019/09/Womens-Aid-Briefing-for-Domestic-Abuse-Bill-2nd-Reading.pdf> accessed 3 December 2019


[6] Ibid


[7] Ibid 48


[8] Ibid 49


[9] “What is the Istanbul Convention?” (ICChange) <https://icchange.co.uk/istanbul-convention>accessed 3 December 2019


[10] Monidipa Fondzer “Johnson pledges to reintroduce domestic abuse legislation” The Law Gazette (London, 13 September 2019) <https://www.lawgazette.co.uk/law/johnson-pledges-to-reintroduce-domestic-abuse-legislation/5101441.article accessed 3 December 2019.>

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