Mishcon de Reya page structure
Site header
Main menu
Main content section

Addressing common misconceptions about domestic abuse and the courts

Posted on 25 November 2022

25 November marks White Ribbon Day (the International Day for the Eradication of Violence against Women) and the beginning of the 16 Days of Activism against Gender-Based Violence. Whilst domestic abuse is widely recognised as a significant issue in society, many myths about abuse and the court's approach to it remain. Caroline Glass, Independent Domestic Abuse Advisor, and Sheena Cassidy Hope consider some common misconceptions.

If abuse was really happening, the victim would just leave.

False.

Caroline: There are many reasons for a victim not leaving, or not feeling able to leave. These can include the survivor feeling that they are responsible for the abuse and therefore that they need to change their behaviour for it to stop. It might be that they feel that it will be less disruptive for the children if the family remains together. or If financial abuse is taking place, and this occurs in 95% of abusive relationships, it may be that the victim just doesn’t have the financial resources to separate. But most importantly, a survivor of abuse will be aware that leaving is potentially putting them at even greater risk, as this is when the majority of serious escalations or homicides occur. Therefore a victim may not leave because it is actually too dangerous for them to do so.  

Sheena: For those who do decide to take action, there are a number of possible legal options. Many forms of domestic abuse (such as physical assault and coercive and controlling behaviour) are criminal offences. Alternatively, non-molestation orders and occupation orders are available through the Family Court. A non-molestation order prohibits the perpetrator ("the respondent") from threatening, intimidating, harassing or pestering the survivor ("the applicant") or a relevant child, or encouraging anyone else to do the same. Occupation orders restrict the respondent's access to the family home or some part of it, and possible the surrounding area.

If a survivor of abuse seeks an injunction, the perpetrator can cross-examine them in court

False.

Sheena: Since 2017, the Family Court has been required to consider whether "participation directions" are needed in certain cases, including those where one party or a witness is a survivor of domestic abuse, or has alleged abuse. Participation directions can include practical steps such as putting up a screen in the courtroom, or arranging for separate waiting rooms for the parties. The court could also prohibit an alleged perpetrator of abuse from cross-examining the alleged victim (and vice-versa), although this power wasn't always used and in some cases the perpetrator of abuse was able to cross-examine their victim. For cases started after 21 July 2022, there is a prohibition on perpetrators and survivors of abuse directly questioning each other in court.

Caroline: Perpetrators are no longer able to cross-examine the survivor. This has removed a powerful barrier that prevented many victims from seeking help. However, there still exists a huge level of fear for the applicant in domestic abuse cases. Although the perpetrator is not able to directly cross-examine them, they will often be in the same room (although they can be protected by ‘special measures’). This can be, in many cases, re-traumatising and enough to dissuade a survivor from supporting a prosecution. Having an IDVA (Independent Domestic Abuse Advocate) alongside can help alleviate some of this anxiety but the process remains an ordeal.

If children didn't witness the abuse, they won't have been affected by it.

False.

Sheena: Domestic abuse affects everybody in the family. The Domestic Abuse Act 2021 recognises that children are victims of domestic abuse where they see, hear or experience the effects of the abuse. Where domestic abuse takes place between parents, it frequently impacts them as parents as well as impacting them as individuals.

Caroline: There is a wealth of evidence to show that children are affected by domestic abuse, even if they are not directly witnessing it. They will most likely hear what is happening - if there is physical or verbal abuse - and will experience fear for the victim and for themselves. They may also be directly affected if they have to monitor their own behaviour as a means of preventing an escalation, for example by being ‘quiet’. They may also be ‘weaponised’ by the abusive parent as a means of exerting further control over the victim, for example by encouraging them to align themselves with the abusive parent, or even be coerced to directly abuse the victim-parent themselves. The consequences of living in an abusive home has a direct impact not only on their emotional wellbeing, but also on the child’s ability to thrive academically and to build safe relationships in the future.

Domestic abuse won't be taken seriously by the courts unless there was violent behaviour.

False.

Sheena: Courts are increasingly aware of the very serious impact that coercive and controlling behaviour – which often consists of a pattern of individually seemingly minor actions – can have on the victim's autonomy and wellbeing. Guidance from the Court of Appeal has stressed the importance of the court considering the whole pattern of behaviour between the alleged abuser and alleged victim when considering whether abuse has taken place and, if it has, the effect it has had.

Caroline: Fortunately, there is now far greater recognition that domestic abusers do not need to use violence in order to control the survivor. Coercive control is now recognised as a tactic of abuse and can effectively limit the survivor’s life without any violence taking place. Indeed, the change in language from Domestic Violence to Domestic Abuse articulates the change in understanding that physical violence is just one tactic of control, but there is more to be done in this regard. In my experience, courts can still lack understanding regarding how control can be perpetrated and likewise, some victims continue to feel that they won’t be taken seriously by the court if they are not able to show bruises.

Successful people can also be victims of domestic abuse.

True.

Domestic Abuse can affect anyone, regardless of their gender, profession, level of education, religion, race or perceived success. It is experienced by more than one in four women and one in six men in the UK. As domestic abuse develops over a period of time, with many controlling behaviours having to be normalised or minimised by the survivor, domestic abuse becomes part of the victims’ everyday lived experience. This can occur in any relationship and in any walk of life. Indeed, being ‘successful’ can be a barrier to reaching out for support as there is a notion that domestic abuse only occurs within certain tranches of society. This can lead to feelings of shame and humiliation for many survivors and can mean they remain in an abusive relationship for longer.

 

How can we help you?
Help

How can we help you?

Subscribe: I'd like to keep in touch

If your enquiry is urgent please call +44 20 3321 7000

I'm a client

I'm looking for advice

Something else