A disease exacerbated

The government lockdown and the need for people to remain within their household because of covid-19 has brought domestic abuse to the forefront of national attention, as victims find themselves trapped with their perpetrator.

“Measures to tackle coronavirus must not do more damage than the disease itself.”

This is the sentiment of former prime minister Theresa May when she spoke to MPs debating the government Domestic Abuse Bill in April 2020 – amid evidence of rising domestic abuse during the lockdown. 

The bill, which was drafted before lockdown, sees the first legislative definition of domestic abuse including coercive and controlling behaviour and financial abuse.

It’s a definition which reflects the fact that domestic abuse is not always physical or sexual. 

Inaccessible help

Domestic abuse charities have reported a surge in requests for help as traditional support networks ground to a halt and are no longer accessible in the current climate. 

The National Domestic Abuse Helpline, run by the charity Refuge, received 25 per cent more calls and online requests for help in the two weeks between 23 March 2020 (when lockdown began) and 6 April. 

The following week, the charity Refuge received an increase in calls of 49 per cent when compared to pre-lockdown.

A similar charity, the Men’s Advice Line, saw an increase in calls of 16.6 per cent.

Then there are the visits to websites: Refuge revealed that visits to its website for information were 150 per cent higher in the week commencing 20 April compared to the week commencing 24 February.

Meanwhile, the charity Chayn – which addresses gender-based violence – revealed visits to its website had trebled in March. 

Alarmingly, killings doubled weeks after lockdown.

Researchers at the Counting Dead Women project told MPs that 14 women and two children had been killed during the first three weeks of lockdown.

This was the highest rate in a three-week period for 11 years and double the average rate.

The rise in domestic abuse is not unique to Britain.

Dr Hands Kluge, director of the World Health Organisation’s European region, told a press briefing “that across the continent the number of women making emergency calls has risen 60 per cent in April compared to the same month in 2019”.

There are similar reported rises in the US.

Lockdown support

With rates of abuse rising, is there enough support for victims in the current climate?

In all areas of safeguarding, including domestic abuse, the police and supporting agencies are struggling to relocate individuals due to covid-19 restrictions, particularly in communal residencies such as refuges. 

This situation leaves victims of abuse with less and or limited options when requiring relocation.

Labour MP Dianne Abbot has recently called for the use of hotels and empty properties to be used to house those in need of safety. 

It is well known that children are affected by domestic violence.

Witnessing and or hearing the abuse can have a significant impact on their mental health, their wellbeing and their own perceptions of what is normal and acceptable behaviour. 

The government has been quick to respond to calls for support for the children in households where there is domestic abuse.

Funding will be given to enable early intervention schemes so children can access support through the police, charities and councils. 

But with schools closed – or open in a limited capacity for the foreseeable future (which offers valuable support and is a trusted mechanism for safeguarding disclosures) – how many children are suffering in silence? 

Within his briefing on 9 June, the president of the Family Division, Sir Andrew Macfarlane, stated: “It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.” 

So, what can the law and the courts do to assist victims of abuse? 

After ensuring that the victim is in a safe place, the initial advice to victims is that they should report the behaviour or incident to the police.

In this covid-19 climate, there has been a reduction in some crimes but a rise in others.

During the lockdown, the police have dedicated resources to deal with the rise in domestic abuse.

Protection notices and orders

Under the Crime and Security Act 2010, the police can issue domestic violence protection notices (DVPN) and obtain domestic violence protection orders (DVPO) from the magistrates’ court at an early stage following a domestic abuse incident. 

Following this, a restraining order can be imposed by the criminal court on the defendant post-conviction with the purpose of protecting the victim from conduct which amounts to harassment or which will cause a fear of violence. 

Restraining orders can also be imposed if the defendant is acquitted if the court considers it necessary to do so to protect a person from harassment from the defendant.

An order can be made where there is clear evidence that the victim needs protection, but there is insufficient evidence to convict on the charges before the criminal court. 

Restraining orders can be for a specified duration, or for an indefinite term where necessary.           

The family courts

If no prosecution is brought against the perpetrator or if conditional bail is not used, victims should seek legal advice to consider and, if necessary, secure injunctive relief from the family court. 

Sir Andrew Macfarlane has stated that: “Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen” during the lockdown.

Tools at the family court’s disposal include:

Non-molestation orders – These orders prevent a victim from being harassed, pestered, intimidated or threatened, including via text messages, emails and phone calls as well as through direct contact.

The police have the power to arrest a person who is in breach of a non-molestation order and, if convicted, the perpetrator can face up to five years in prison. 

To proceed with an application, the necessary court form will need to be completed and accompanied with a witness statement setting out in detail what has taken place. 

An application can be made to court either ‘on notice’ (the other person is given a prior warning) or ‘without notice’ in urgent situations where it is “just and convenient to do so” having regard to the circumstances of the case, including any risk of significant harm if an order is not made immediately (section 45 of the Family Law Act 1996).

A middle ground of ‘on notice but urgently’ can also be considered in certain circumstances, such as if bail conditions are to run out in the next few weeks, as the immediate risk of harm is not present but where there is justification to have the matter dealt with more quickly than usual.

The court will tend to err on the side of caution, so where applications are made without notice or urgently, the protection sought will usually be made in the interim with the court scheduling a return date a week or so later.

Typically, non-molestation orders last for a period of 12 months.

They can be granted for longer, but they are not usually indefinite, and they can be extended if continued protection is necessary.

Occupation orders – These orders can also be a useful tool.

Such orders can require a person to be excluded from a property (or part of it) and or can place an exclusion zone around the victim’s address to preserve their safety. 

Applying for an occupation order involves the same form and process as the application for a non-molestation order.

It is unlikely that an occupation order will be made on an interim basis pending a contested hearing unless the order is made with the consent of the respondent.

However, immediate protection can be provided by the non-molestation order. 

Remote hearings

Throughout the lockdown, the family courts have continued to process applications.

Urgent applications such as injunctions have been given the priority that they require and, in my experience, the listing of the first hearing is within the same timescales as before covid-19.

In this climate of remote hearings by telephone or video calls, victims of domestic abuse will not be in the same room as their perpetrator.

This provides a welcome relief for victims during what is a difficult and frightening process for them.

Save for the physical attendance at court, the same formalities of the court room apply to remote hearings.

Where evidence is needed at a contested hearing, the court will consider whether that evidence can be given effectively via video call.

If it cannot, then the court is likely to list a hybrid hearing which involves one party attending court to give evidence and the other party will be involved remotely.

Leaving an abusive relationship 

After the safeguarding of themselves and their children, victims are often concerned about their financial stability.

It is important to ensure that the victim is receiving all the state benefits to which they are entitled, as empowering victims financially may support them to leave the relationship. 

After dealing with the initial aftermath of the abuse, victims may require support to end their relationship.

If married, they may consider a divorce to end the marriage (or dissolution in the case of a civil partnership). 

There may also be arrangements for children and the division of financial assets to resolve. 

Family lawyers will, in addition to providing advice to the victim, be the point of contact with the perpetrator about these issues to ensure the victim remains at arms’ length from them.

The government’s role

With domestic abuse having been highlighted as a real issue in the lockdown climate, is the UK government doing enough – or is it time to think outside of the box? 

For example, in Greenland they have limited the sale of alcohol.

In Spain and France, they have introduced a system where victims can alert a pharmacist of their need for help. 

A similar system has been trialled in Britain and MPs are calling for it to be rolled out to other places such as supermarkets (places where victims reasonably go on a daily basis without their abuser), thus increasing the availability of help for victims.

Campaigners continue to lobby the government in respect of the Domestic Abuse Bill which aims to raise awareness, improve the effectiveness of the justice system to protect victims and provide a statutory duty for agencies to support victims of abuse. 

It is hoped that despite difficulties and restrictions during the ongoing lockdown, this bill is given the priority that it requires to effect change.

Maria Coster is a senior solicitor at Stowe Family Law stowefamilylaw.co.uk