Legal aid and Convention rights in domestic violence committal proceedings


Non-molestation orders and conviction for breach


Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article


FLA 1996 s 42, as relevant, reads


42 Non-molestation orders

(1)   In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –

(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.


Offence for breach of non-molestation order


Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:


42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….


Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).


Conviction on a substratum of findings to a civil standard of proof


Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.


If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.


McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:


[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.


The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:


[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.



The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:


[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.


The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:


3 Everyone charged with a criminal offence has the following minimum rights –

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…


Engels v Netherlands: ‘legal assistance of his choosing’


Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:


[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).


As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.


Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3


The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?


This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:


[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.


And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?


If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.


Legal aid and the non-molestation order


The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.


But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.


 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.


Legal aid for domestic abuse: a legislative morass


Legal aid for ‘domestic violence’


Human rights legislation may enable a judge to tell the Minister of Justice to answe: are your new legal aid laws lawful? One of the ironies of the Tory legal aid legislation in 2012 (in force from April 2013) is that its complexity increases in inverse proportion to the extent it enables people to consult lawyers to explain it. The more complex the legal aid legislation becomes, the more difficult it is to get help just to explain what it means.


Take domestic abuse. Even that has three definitions. The law calls it ‘molestation’ – a wide spectrum of behaviour which a person (mostly women) should not have to put up with. It is also called ‘domestic abuse’: perhaps to cover a wider range of behaviour than ‘domestic violence’, which is what legal aid legislation calls it. ‘Molestation’ is the term which the judges must apply.


In 1976 Parliament had finally begun to recognise the difficulties of trapped unmarried women and their children – ‘battered wives’ – who could not exclude their violent partners (as could their married sisters) from their homes. A 1976 domestic violence Act was passed. In 1978, early in life the Act the House of Lords (now Supreme Court) considered a case which asked whether Parliament meant to allow an unmarried woman to force a man from a home in his name.


Lord Scarman and domestic violence


Lord Scarman (a great twentieth century judge) defined domestic violence as: ‘conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. [So too is] conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home’.


A recent case in the Court of Appeal has stressed that judges have deliberately not defined the term ‘molestation’. The principle applies that – like an elephant – molestation is difficult to define; but a family judge knows molestation when the judge sees it. And so, it might be thought, should be the law for legal aid; but…


So what of legal aid for the abused woman (it is mostly women)? The Ministry of Justice announced in early 2018 ( in an orgy of self-congratulation: ‘Changes to evidence requirements in private family law disputes have come into effect. There will no longer be a time limit on abuse evidence…’. Eventually the reader realises the press release is about legal aid which may be available to victims of domestic violence or child abuse. ‘To qualify, applicants must provide objective evidence of the abuse while their case is also subject to means and merits tests.’ This ‘objective evidence’ is in a list of 22 paragraphs which tries to do exactly what judges and parliament has said should not be done: it tries to define what the ‘domestic violence’ elephant is.


Now, imagine you are a single mother – Kath – with two small children. You have been forced to leave home by your partner, Nick. He applies to a court for contact with the children. You say has been abusive, and occasionally violent; though there is no physical evidence – there are no marks on you to show a doctor. It is, in Lord Scarman’s words ‘impossible or intolerable [for you] or the children, to remain at home’. You are scared at the prospect of seeing him in court.


Can you get legal aid? You can’t pay for a lawyer to tell you. You have no money. You have minimal state benefits, Nick is paying no maintenance for the children, and you have debts which are out of control. No one will lend you the money to pay for a medical report (required, in your case, by the new regulations), still less to pay for a lawyer (even if the lawyer does not charge).


You try to find out from the internet whether you can get help. If you are patient – and perhaps internet savvy – you will find a definition of ‘domestic violence’ in the modern legal aid legislation (alluringly called Legal Aid Sentencing and Punishment of Offenders Act 2012). The type of help you want is at para 11 of Sch 1 to that Act (in all, 154 sections and 24 Schedules).


What the Act does not tell Kath clearly is that to get legal aid you need to refer to three factors, each in separate unnamed regulations: first to find out if you earn too much money (Kath passes that test); next, whether your case has a prospect of success; and finally for the evidence for legal aid (the regs in question here)?


There are 21 forms of ‘evidence’ listed (some of which leave me baffled). Only the medical report applies to Kath. Without the report she fails at the first hurdle. And even if she can pay, the doctor can only repeat what Kath says. But her lawyer could do exactly the same when they complete Kath’s legal aid application. The medical report, if it does not document injuries, is a legal aid placebo, just something for the Legal Aid Agency to put on Kath’s file.


Legal aid laws, unlawful


Let us stand back from the legal aid legislation morass. European Convention 1950 (ie human rights) says Kath is entitled to a fair trial. Legal aid must be made available or that right may be impeded. Because she cannot pay for a medical report she cannot get the evidence required by the swish new regulations. Without that she must face her former partner alone in court. He may pay for a lawyer (he earned the income in the household); but it is he who, she says, has abused her.


There is a strong argument that the legal aid laws are unlawful. They are impenetrable to the reader who needs them. People like Kath and her children may be denied a fair trial and will suffer. This is where Human Rights Act 1998 comes in. If the laws are so complicated and you – having no means to pay for a lawyer – are denied legal aid, then how can you get to court for any trial at all (or defend yourself)? You cannot get the fair – or any – trial to which you are entitled.


So Mr Gauke: how legal are you laws when it comes to legal aid and domestic violence?

Domestic abuse assistance scheme

20170407_161350Domestic abuse: re-abuse in non-molestation order proceedings


The proposal set out here, arises from the issue identified by Women’s Aid and, in case law, by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 over ten years ago. The problem was – to an extent – intended to be provided for by a government bill (Prison and Courts Bill) lost with the 2017 election. As Roderic Wood pointed out, and as explained below, criminal proceedings provide protection from re-abuse in the witness box by a respondent/accused in person cross-examining the complainant or other witness (Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) s 38(4)). Family proceedings do not provide the same, or any, protection.


The scheme proposed here can provide a prototype for an effective scheme for the government to run; and which will cover the problems identified by such judges as Lady Hale in the Supreme Court and Hayden and Peter Jackson JJ in the Family Division in for example cases like Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, [2013] 2 AC 66, Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam). In all of these cases the witness or party could have been assisted only if the bill’s ‘significant distress condition’ exemption in the bill applies.


Cross-examination in person of a complainant in family proceedings


YJCEA 1999 s 35 and 36 makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. YJCEA 1999 s 37[1] is a catch-all section. It leaves it, finally, to the court to decide whether a direction should be made (s 37(2)) that such cross-examination should not be permitted, with the factors for the court to consider in making its decision in s 37(3).


If ss 35-7 apply – that an accused in person should not cross-examine in person a witness – then s 38 come into effect. The court must ‘invite’ the accused to instruct an advocate, failing which – no one can be compelled to have legal representation (European Convention 1950 Art 6.3(c) – ‘the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). Then s 38(4) applies, and requires the court to appoint an advocate to cross-examine:


(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.


Advocate not responsible to the respondent


Section 38(5) provides that: ‘A person so appointed shall not be responsible to the accused.’ Provision is made under YJCEA 1999 s 40 for payment of ‘the proper fee or costs of a legal representative appointed under s 38(4)… and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment’ from public funds.


European Convention 1950 Art 6.3(d) gives a defendant in criminal proceedings the right to examine ‘witnesses against him’; though this need not be face to face (R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157). It is likely that analogous rules in relation to Art 6.3 would apply in domestic abuse proceedings under Family Law Act 1996 Pt 4 in view of the seriousness of some of the applications which are equivalent to, and sometimes of the same facts as, criminal charges.[2]


Before the 2017 general election the government proposed a scheme similar to this as part of Prison and Courts Bill. Clause 47 of that bill proposed a variety of amendments to Matrimonial and Family Proceedings Act 1984 to cover the proposal. It was more limited than that needed (see below). It was lost when the election was called and has not so far been revived.


A voluntary scheme


For the time-being, to assist complainants and the courts, a scheme of free (pro bono) advocates could surely be set up. Financial assistance will be sought for the expenses of such advocates. Thus far, neither Resolution (a group of family lawyers, mostly solicitors) nor Family Law Bar Association will directly help. Both groups say the Government must take action, though FLBA may help with publicising any voluntary scheme to its members but no more.


If we wait for the government, especially for a Tory Government, we could wait for ever. Most new schemes to help people are started by volunteers. If we waited for the government there might be only fee-paying schools and few hospitals or libraries. Reforming Labour governments have helped to ease that: the NHS, state education and legal aid, freedom to roam and human rights; even YJCEA 1999 itself.


Resolution and FLBA probably think that a scheme proposed by the government (in line with YJ s 38(4) and funded as under s 40) will solve the problem; and that therefore we should wait till the Government get on with it as they promised a year ago. That is all very well. The Government are doing nothing at present; and judges such as Hayden and Peter Jackson JJ are having to make do as they watch witnesses and parties being further abused in cross-examination. In Re A (A Minor: Fact Finding; Unrepresented Party) (above), Hayden J explained the position:


[60] It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.


Over ten years ago in H v L and R (above) Roderic Wood J pointed out the extent to which family proceedings lag behind criminal cases in protecting the vulnerable witness from re-abuse. He was lucky enough to secure help from the Attorney-General in that case. That will not happen again. Under this scheme a small number of advocates are being asked to help courts, if judges in the small number of cases which apply, ask for assistance for an unrepresented alleged abuser to cross-examine and alleged victim. This may also have the advantage of providing the Government with a prototype.


David Burrows

26 December 2017


[1](1)This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—

(a)the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or

(b)the court of its own motion raises the issue whether such a direction should be given.

(2)If it appears to the court—

(a)that the quality of evidence given by the witness on cross-examination—

(i)is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and

(ii)would be likely to be improved if a direction were given under this section, and

(b)that it would not be contrary to the interests of justice to give such a direction,

the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.

[2] In H v L and R (below) Roderic Wood J took the view that in civil proceedings a right to cross-examine existed thanks to Art 6.3(d): ‘[6]… Although, in principle, Art 6(3)(d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by s 34A of the Criminal Justice Act 1988, which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by s 35 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act).’



Domestic Violence and Matrimonial Proceedings Act 1976 as new law


In a judgment (speech in House of Lords) in Davis v Johnson (9 March 1978; ) [1978] UKHL 1, [1979] AC 264 at 348 Lord Scarman explained the remedies provided by Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) s 1; and then, he defined domestic violence for the purposes of the Act:


… Conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction — actual, attempted or threatened — is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.


Lord Scarman was a pre-eminent family lawyer from a time when children law was hardly regarded as a separate discipline (think Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA;  A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948, (1981) 2 FLR 222; Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224; Re E (A Minor) (Wardship: Court’s Duty) [1984] FLR 457 for a flavour of his children law work).


Non-molestation orders: a new family law remedy


Before the quote above, Lord Scarman (who gave the fifth speech) had set out the text of s 1(1) of the Act (still no mention of domestic violence or domestic abuse – just of ‘molesting’ a party:


(1) Without prejudice to the jurisdiction of the High Court, on an application by a party to a marriage a county court shall have jurisdiction to grant an injunction containing one or more of the following provisions, namely—

(a) a provision restraining the other party to the marriage from molesting the applicant;

(b) a provision restraining the other party from molesting a child living with the applicant;

(c) a provision excluding the other party from the matrimonial home or a part of the matrimonial home or from a specified area in which the matrimonial home is included;

(d) a provision requiring the other party to permit the applicant to enter and remain in the matrimonial home or a part of the matrimonial home, whether or not any other relief is sought in the proceedings


Lord Scarman explained s 1(1) as follows:


Subsection (1) enables a party to a marriage to make application to a county court. It is without prejudice to the jurisdiction of the High Court and it empowers a county court (any county court, whether or not invested with divorce jurisdiction) to grant an injunction “whether or not any other relief is sought.” Clearly the subsection provides a new remedy additional to, but not in substitution for, what already exists in the law.


Section 1(2) applied s 1(1) equally to a couple who were not married; and references to matrimonial home were to be construed accordingly.


Non-molestation in 1996; but still no domestic violence definition


And so, in 1975-6, a new family law remedy was born in the 1976 Act. It was intended to cover both the married and the unmarried, and their children: the free-standing (‘whether or not any other relief is sought’) non-molestation injunction. This is the remedy which – for today’s purposes – is reproduced in Family Law Act 1996 s 42(1):


42 Non-molestation orders

(1)In this Part a “non-molestation order” means an order containing either or both of the following provisions—

(a)provision prohibiting a person ( “the respondent”) from molesting another person who is associated with the respondent;

(b)provision prohibiting the respondent from molesting a relevant child.


The 1996 still avoided a definition of ‘domestic violence’: the rest of s 42 deals with procedural matters; whilst earlier sections of FLA 1996 had dealt with occupation orders.


The charming authors of Legal Aid Sentencing and Punishment of Offenders Act 2012 attempted a definition of ‘domestic violence’ which is tucked away at Sch 1 para 12(9):


‘domestic violence’ means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;…


Contact practice direction and domestic abuse


In Family Procedure Rules 2010 PD12J Child Arrangements & Contact Orders: Domestic Violence and Harm those who draft Family Procedure Rules 2010 and their accompanying practice directions have given us as a definition of domestic abuse – but only in relation to child contact. Para 4 (I set this out in full):


‘domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;…


In addition the terms ‘abandonment’, coercive behaviour’, controlling behaviour’ and ‘ill-treatment’ are further defined.


A practice direction as law


The first comment on this must be to recall that a rule, still less a practice direction, cannot change the law (Re Grosvenor Hotel, London (No 2) [1965] Ch 1210, CA approved by Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 at [27]). The law is what was explained by Lord Scarman in Davis v Johnson. And anyway what does the practice direction add to what was said by Lord Scarman 40 years ago?


One problem with any definition is that the more extensive you make it, the weaker it is: detail only suggests more ways in which a person can wriggle round it. That is the beauty of Lord Scarman’s definition; and as law it applies to a much wider set of statutory circumstances (FLA 1996 s 42; children proceedings generally (ie not only contact); and occupation orders).


The practice direction is a lesser form of law, and priority when advice is given or legal aid applied for, should be given to Lord Scarman (with a nod, perhaps, to LASPOA 2012 Sch 1).


Cross-examination by alleged abusers; and thoughts for a way through…

Abusive cross-examination: recent case-law


Cross-examination of complainants by their alleged abusers has had a number of outings in the past three months, including Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and Re D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J. Re A has drawn at least two professorial comments in the mainstream legal press: ‘Vulnerable witnesses’ [2017] Family Law 704 by Penny Cooper and ‘Abuse upon abuse’ [2017] New Law Journal by Jonathan Herring.


The importance of this subject, and the inadequacy of the family proceedings system to deal fairly with it, cannot be over-emphasised. What is surprising about each of the above sources is their failure – as I read them – to deal with the recent jurisprudence on the subject. Hayden and Peter Jackson JJ (respectively at [25] and [6]) refer to Family Procedure Rules 2010 PD12J; but a practice direction is low down the citation pecking order when compared with statutory and common law (in this case Court of Appeal) authority.


Jurisprudence on this subject must surely touch upon at least to the following:


  • Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 (and see European Convention 1950 Art 6.3(d). The 1999 Act is the source for much of the thinking of the now stalled Vulnerable Witnesses and Children Working Group (VWCWG: touched on below) and of the proposed reforms for family proceedings by the Prison and Courts Bill cl 47 lost at the June 2017 General Election.
  • Matrimonial and Family Proceedings Act 1984 (MFPA 1984) s 31G(6) (referred to by Pater Jackson J, though not specifically cited); and
  • K and H (Private Law: Public Funding)[2015] EWCA Civ 543, [2016] 1 FLR 754


To put in context the evidence of any witness who is entitled to rely on ‘special measures’ (as explained below) it is worth recalling Lady Hale in the Supreme Court in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (where the Supreme Court said a vulnerable witness must submit to challenge by a defendant of her allegations):


[36] … Family proceedings have long been more flexible than other proceedings in [the way the court receives evidence]. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see [the face of the witness X]. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered…


And a thought: could a scheme akin to the Bar Pro Bono unit be devised to provide examination for the court of a witness or party who is to be cross-examined by her abuser, akin to YJCEA 1999 s 38(4); and as explained further below.


Statutory starting point


The statutory starting point is MFPA 1984 s 31G(6). This states:


(6)Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.


MFPA 1984 s 31G(6) is derived from Magistrates’ Courts Act 1980 s 73 (derived from Magistrates’ Courts Act 1952). It was explained by Lord Dyson MR in Re K and H (above):


[42] …. [MFPA 1984 s 31G(6)] … enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness…


The case concerned funding of representation by the Lord Chancellor, so comments on s 31G(6) may be said to be obiter. Whether obiter or part of the ratio the comments of Lord Dyson MR, sitting with two highly experienced family lawyers – Black and McFarlane LJJ, both of whom agreed with him – must command respect. He considered the need to the judge to ask questions in Re K and H to be ‘fairly straightforward’. Had the judge in Re D followed the district judge’s directions for the father to prepare a list of questions (as Lord Dyson MR suggested for the judge in Re K and H at [60]), that would have been satisfactory; and the judge could have taken over from there.


Youth Justice and Criminal Evidence Act 1999


Reference to YJCEA 1999 Pt 2 enables a court to look – as did Roderic Wood J in the often cited case of H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 – at the statutory source of the ideas behind cl 47 (yet to re-emerge from the Ministry of Justice drafting department since the election). The context of the 1999 Act in family proceedings is fully explained in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 (‘Special measures for receiving evidence’) and 19 (‘Children: views and evidence’).


For present purposes and in criminal proceedings only, an advocate can be appointed by the court to conduct cross-examination, ‘in the interests of the [defendant]’ where he – it will normally, though not invariably, be a man – has no legal representative (and see comments of Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364, which are said to have been partly instrumental in passing YJCEA 1999 s 38). YJCEA 1999 s 38 considers the circumstances in which, after consideration of the point, a court determines that it is ‘in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). It that case, s 38(4) continues:


(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.


The legal representative will then be paid for from public funds (YJCEA 1999 s 40). If volunteer advocates (see eg Bar Pro Bono Unit) could fill this role if asked to do so by the court, might that work in the type of case which so concerned Hayden and Peter Jackson JJ? The point could be dealt with as a special measure as part of case management directions (in much the same way as seems to have been the case with the original district judge’s case management directions in Re D).


A practice direction: case management


Peter Jackson J (at [6]) drew attention to PD12J ‘Child Arrangements and Contact Order: Domestic Violence and Harm’ which he pointed out includes the following:


  • A definition of domestic violence that includes controlling, coercive or threatening behaviour, violence, or abuse, including psychological, physical, sexual, financial, or emotional abuse (paragraph 3);
  • Approval for the court to question witnesses itself in order to protect alleged victims (paragraph 28):


He held that ‘While ensuring that the allegations are properly put and responded to, the fact-finding hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved.’ He continued, dealing with the ‘fact-finding’ hearing:


  • Each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts.
  • The judge or lay justices should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.


Peter Jackson J concluded this passage of his judgement:


[6] … Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence.


By contrast, in Re A Hayden J stated that he refused to deal with a case in the way he had been required to do (but without reference to s 31G(6) or Re K & H:


[60] It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.


Special measures: Youth Justice and Criminal Evidence Act 1999


The usefulness of YJCEA 1999 Pt 2 is that is summarises categories of case (child and incapacitated witnesses) in which special measures can be used in criminal proceedings. Many of these – video links, screens etc as mentioned by Lady Hale in Re A – are in effect already in use in family proceedings; and to these can be added special rules as to hearsay and ABE interviews for children proceedings. YJCEA 1999 s 18 (with Criminal Procedure Rules 2015 Part 18 and its supporting practice direction) defines how special measures directions at YJCEA 1999 ss 23-30 are to be made available by the court. The working of special measures was explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393.


Amongst the forms of special measure under YJCEA 1999 and already available in family proceedings are:


  • preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);
  • allowing a witness to give evidence by live link (s 24);
  • hearing a witness’ evidence to the exclusion of others (s 25);
  • admitting video recorded evidence or cross-examination (ss 17 and 28; and see ABE evidence in the case of child or other intimidated witness);
  • questioning a witness through an intermediary (s 29): in principle and if funding (eg by legal aid is available) in principle this form of assistance should be available in family proceedings.


Pro bono assistance as a special measure


Special measures are available. With imaginative case management – and perhaps eg the funding of proper video-link equipment in family courts – intimidated witnesses can be helped already in family courts.


Pending further family law legislation promised by the Government, could pro bono (free) advocacy assistance as a special measures direction equivalent to YJCEA 1999 s 38(4) be a way to help in cases identified by the judges referred to above. Even could this be funded as an exceptional case determination (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3); and see ‘Funding implications for vulnerable witnesses’ [2017] Legal Action at 6).


Dear Lord Chancellor – ‘domestic abuse’: time for a consistent approach in English law

A modern definition for Ministry of Justice


The Prison and Courts Bill clause 47 helpfully deals cross-examination of complainants as witnesses in family law domestic abuse proceedings.


The Sentencing Council have rephrased its proposed Guidance with the proposition that ‘domestic abuse’ replace ‘domestic violence’ as the criterion which – if accepted – should guide judges in sentencing of offenders A definition suggested by the draft Guidance is set out at the end of this letter. This is based on the Council’s view that the Guidance should be revised:


‘… to reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years, in this important area of sentencing. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that both physical violence and controlling and coercive behaviour constitute abuse in domestic settings.’


Meanwhile family courts forms adhere to the old-fashioned ‘domestic violence’ terminology; and Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 12 adheres to the more restrictive, ‘domestic violence’:


Victims of domestic violence and family matters

12(1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.


A definition of ‘domestic violence’ was added in 2013 by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
‘“domestic violence” means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;’.


This sounds to me as if abuse is an aspect of violence – which it can be; but that a Legal Aid Agency decision-maker could say that the more extensive definition (ie domestic abuse) is not comprised always in the more restrictive (ie domestic violence).


The wider spectrum of domestic abuse is applied to children and ‘vulnerable’ adults (LASPOA 2012 Sch 1 para 3); but not to others in a family relationship. Is that a fair assumption?


Time for reform: Prison and Courts Bill


Is it not time to amend the narrower, unfair (to the person abused) and out-moded definition – namely ‘domestic violence’ – in legal aid legislation, family law forms and in any other circumstances? The wider ‘domestic abuse’ would be applied always for grant of legal aid? You would have one consistent set of terminology for all relevant circumstances.


If you agree is not the Prison and Courts Bill a good opportunity to do this?


Yours sincerely




David Burrows



Scope of the [Sentencing Council] guideline


  1. This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. There is no specific offence of domestic abuse, it is a general term describing a range of violent and/or controlling or coercive behaviour.


  1. A useful, but not statutory, definition of domestic abuse used by the Government is:


Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.


  1. Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.


  1. Coercive behaviour is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.


  1. The Government definition includes so called ‘honour’ based abuse, such as female genital mutilation (FGM) and forced marriage. Domestic abuse occurs amongst men and women, people of all ethnicities, sexualities, ages, disabilities, immigration status, religion or beliefs, and socio-economic backgrounds. Care should be taken to avoid stereotypical assumptions regarding domestic abuse.