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Introduction

With lockdown keeping abusers at home with their victims, COVID-19 has led to a surge in domestic abuse (“DA”) across the globe. In Australia, the government reported the highest ever number of DA-related google searches in the last five years. In France, women have been reduced to using the code word “mask-19” at pharmacies to report violence at home. Here in the UK, Refuge reported a 25% increase in the number of calls to the National Domestic Abuse helpline since the start of lockdown and visits to their website in the last week of March were up by 150% compared to the last week of February. Further, the Metropolitan police have made an average of 100 DA-related arrests per day since 9th March and a (harrowingly titled) project named Counting Dead Women recorded 16 DA killings of women and children since the lockdown restrictions were formally introduced and 12th April. We are clearly in a desperate situation where the need for change is urgent. 

This is hardly surprising. The pandemic has turned up the heat on many of the pressures that breed DA; financial insecurity, a lack of readily available support and alcohol abuse (indeed, an additional £104m was spent on supermarket alcohol in the last week of March, compared to the week before). This perfect storm aside, some abusers are simply exploiting their partner’s enforced social isolation, using the restrictions as an excuse to harass, intimidate and harm those closest to them. 

The justice system’s response to DA pre-corona 

Before the pandemic put DA in the spotlight, the government was already under pressure to improve its response to the issue. In a bid to answer calls for change, the Domestic Abuse Bill (the “Bill”) was re-introduced to the House of Commons in March and had its second reading on Tuesday. If enacted as currently drafted, this Bill would introduce welcome changes to the law on DA. The statutory of the definition of domestic violence would be widened to cover emotional, coercive and economic abuse as well as physical violence. Further, police would have greater powers to enforce domestic violence protection orders. Most relevant to family practitioners though, is that cross-examination of victims by their abusers in the family court would be explicitly prohibited. 

Among those celebrating the Bill is Home Secretary, Priti Patel, who commented that the Bill is a “monumental step to empower victims and survivors, provide protection and tackle perpetrators at the earliest stage. Through this bill and bolstering law enforcement, we will be able to keep millions of victims safe”. The Bill has not, however, been hailed as a step-change by all. Of key concern is whether the Bill goes far enough to direct sufficient funding towards the public services tackling DA. Stamping out DA is an expensive process. Indeed, removing women and children from unsafe situations is only the first step in a victim’s road to recovery. Funding (and a lot of it) is required to provide: (1) victims with ongoing support to process their trauma; and (2) abusers with perpetrator programmes to prevent them from re-offending. 

As family practitioners will be well aware, in addition to seeking help from the police (who would derive enhanced powers from the Bill), victims of abuse can look to Part IV of the Family Law Act  (“FLA”) 1996 for further DA remedies. By virtue of the fact that: (1) FLA injunctive orders can be obtained without notice to the abuser; (2) upon breach of such an FLA order, the abuser can be arrested and brought before the court immediately, these injunctions can often provide a speedier remedy than police intervention can. In my experience, the family court is generally amenable to making non-molestation orders, often quite easily persuaded that, at least on an interim basis, the well-being of the applicant (and any relevant child) is best served by having such an order in place. However, convincing the court to make an occupation order is a more wearisome task. Further, applications for zonal non-molestation order will often be dismissed as an occupation order by the back door. To this end, any injunctive provisions that include exclusion areas should not be routinely included in non-molestation orders as they are, in the words of Mr Justice Jackson in R v R [2014], “serious infringements of a person’s freedom of action and require specific evidence to justify them”. 

It would seem therefore, that even before quarantine turned DA victims’ homes in domestic prisons, the justice system’s response to DA could be criticised for lacking real teeth. Whilst making some meaningful changes, the Bill is not backed by enough funding to tackle what is a resource-intensive issue. Further, whilst non-molestation orders can offer victims an immediate time-out from their abuser, perpetrators are rarely ousted from their homes, which is often all victims want when they have no where else to go.  

Is the justice system adapting to tackle the corona-induced spike in DA? 

As I set out above, the DA issue was already crying out for a solution pre-pandemic. A global crisis that required social isolation was therefore the last thing it needed. That said, the government’s lockdown restrictions are not designed to create a blanket prohibition against leaving the home. More specifically, the Health Protection (Coronavirus, Restrictions) (England Regulations 2020) set out 13 situations in which an individual would have a “reasonable excuse” for leaving home. Amongst others, these excuses include to access critical public services (including services to victims) and, to avoid injury, illness or to escape a risk of harm. 

However, even if victims have the freedom to leave their home, it is not necessarily a viable option for all, particularly when there are limited places to go. Indeed, the government was heavily criticised for turning down two hotel chains’ offer of free rooms for DA survivors during the lockdown. Whilst one can understand why the government refused the offer (as survivors of DA often require specialist refuge accommodation which cannot be readily tracked by their abusers), the question remains: where does one go in a lockdown when the services tasked with providing specialist alternative accommodation are buckling under the strain of the pandemic?

Indeed, DA support services are being faced with more obstacles than ever. Not only have their operational costs increased to adapt to remote working practices, the lockdown leaves them with limited fundraising options. To tackle this issue, the Home Secretary pledged £2m to boost online support services and helplines for victims. This sum has been dismissed by Mandu Reid, leader of the Women’s Equality Party, as a mere “drop in the ocean”. Indeed, it is just a small proportion of the £48.2m emergency cash injection which Women’s Aid have said is realistically required to keep DA services afloat. The government is therefore facing mounting pressure to provide emergency funding to the “frontline” DA services as a matter of urgency. Indeed, the shadow Home Secretary has asked that 10% of the £750m fund which the Chancellor has allocated to charities during the pandemic, is ring fenced for DA charities specifically.

What about the availability of civil remedies amidst all this chaos? The family court is still hearing urgent applications which include applications for injunctions. However, the crucial question is whether victims of abuse are aware of this. There is certainly a risk that the terms “lockdown”, “isolation “and “quarantine” create a misconception amongst victims that both family lawyers and the courts, have closed their doors to justice until further notice. This will undoubtedly prevent those with a very real need for protection from seeking out injunctive relief, despite FLA injunctions being available to them during the pandemic.  

Conclusion

Whilst the pandemic has indisputably made things worse, DA has been on the rise for some time. Between January - March 2019, the Ministry of Justice reported the highest quarterly number of FLA injunction applications since 2009, marking a ten-year high. Any statistic for Q1 of 2020 recording the number of FLA applications, and the amount of DA cases more generally, would be redundant; with insufficient funding supporting DA services and (perhaps the perception only) of restricted access to legal advice and recourse through the courts, victims are put in perpetual proximity to their abusers, unable to: (1) leave their domestic prisons, and (2) make those crucial, and often life-saving, applications to the family court. 

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