Hello and welcome everybody very pleased to welcome you to today's session through data law. My name's Safta Mahmoud and I'm very pleased to welcome you to today's session. This then is the family and matrimonial law update for autumn 2021. This is session force of the Final session of four. We're going through these elements of Children and family law data generally with you. So you know that I've been spending a fair bit of time in the last few sessions and going through with you. Somebody updates insofar as financial remedy matters are concerned divorce. Some of the changes that are coming in as a result of a new divorce law, the online divorce position, their cohabitation in the last session, I spent some time going through private and public Children or cases with you today then I'll be spending some time going through some of the developments in so far as the law surrounding domestic abuse is concerned. So again, I'm hoping a very useful a number of useful updates for you going forward in today's session. So we'll be looking at a person protection in particular and seeing how distant ties in with so many other aspects surrounding Children matters also. Right, So what are the key updates and less than have a look at this? Well, first and foremost, want to talk about the stalking protection orders and these we're orders that came into effect in fact last year january 2020, these came to effect and therefore just before the first lockdown and there's some very useful CPS guidance available on this. I'll put the link therefore you wish if you wish to have a look at that these came in as a result of the stalking protection act of 2019. And these orders applied for by way of an application, whether it's to the Magistrates court by the police in those circumstances and they're going to take the form of effectively a civil orders and that's where these come into play. And what you find is in So far as the Cps guidance is concerned, it makes it clear that these orders could be either by way of an interim or in fact a full fun lauder coming made and sometimes these may be applied for where it's felt the threshold to commence criminal proceedings for the commission of an offense has not yet been met or may not in fact been met. So it may be that they used in that situation. It may be used where suspect has been charged, but these should not be Seen as an alternative to prosecution. Was stalking offenses under protection from Harassment Act from 1997. What you find is the guidance talks about the fact that these stalking protection orders can be used to complement the prosecution of a stalking offense in that regard. Okay, and in fact, when the police are applying for a stalking protection order, an interim order that can request both prohibitions, two protect the victim from the risk of stalking. And interestingly, I was looking at some figures on this recently and sadly, the there has been a rise in the number of stalking cases, particularly due to the covid pandemic and the lockdowns that we've been having. And you can see there for the purpose and importance of these orders going forward. So they could be used in both domestic abuse cases, stalking by, say, former intimate partner, for example, so they may be utilized in those kind of situations. And also as a CPS guidance refers to the so called stranger stalking, so that it's people who people may not have been associated with in that regard. Okay, and it could be in place this protection even if any case results in acquittal. So you can do so you can see this is somewhat similar to what we've got with the protection from harassment act. We're back in 2009, you might remember as a result of domestic violence crime and victims act of 2004, even if somebody's acquitted under any of the offenses under the protection from harassment act, whether it's the offense of harassment, violence stalking, for example, stalking with had been intent to cause harm any of those offenses, even if they're acquitted, the court can still make a restraining order. Okay, so in that respect, stalking protection orders are somewhat similar to those provisions under the Protection from Harassment Act of 1997 and there's been some recent guidance put together on this In the in the draft statutory guidance framework. This was updated on six August this year. And I'll put the link there for you if you wish to have a look at this in a bit more detail. And some of the information it provides here is that stalking protection orders as it says, allows for early police intervention, pre conviction in stalking cases before stalking behaviors becoming trench to escalate it. So that's where these really allowed for this early intervention as it says. And as I've just mentioned, she should not be seen as an alternative two full investigation and prosecution where the criminal offense of stalking appears to have been committed. So he shouldn't be seen as an alternative, but more to complement the opinion of those charges as well. There could be applied for at any point, not just pre conviction. Okay, and this is made to the court by the police. Of course, the police who are pursuing these orders. And also the police should consider applying for these which appears to them that the respondent has carried out access. Obviously, experts talking or they pose a risk of stalking to a person and there is reasonable cause to believe that disorder is necessary to protect the other person from that risk. Okay, so you can see the kind of civil element of this and why their forts felt that these may well be necessary. That and there is no restriction as the stage during the process at which these orders made. So you may find that these would be applied for even if there is not going to be criminal proceedings brought in relation to that, although where the threshold to commence criminal scenes is met at the stalking protection order is not an alternative to prosecution. So it shouldn't be seen instead of. Okay, so that's where this comes in. So it's sufficient for the court to be satisfied that the criteria set out in the stalking Protection act are met. So, have a look at the guidance cities. Very useful. I would suggest, Okay, right, nothing brings me onto the developments surrounding the issue of similar fact evidence and all sort of position, particularly surrounding that of controlling and coercive behavior and how we then deal with those types of matters, both in Children cases? And also those where were seeking normal estacion and occupation orders. And this was something that was looked at uh firstly earlier this year, In the case of F&M. This 2020 decision by mr Justice Hayden. This was a case where the court has previously had decided on the previous judgment as to the case of similar fact evidence, which means that if you've got a situation where somebody has uh huh behaved in a particular way to somebody in this case. Said a man has treated his partner in a particular way he has controlled or his subjects of controlling coercive behavior. Can you use that similar fact as really confidentially based evidence if there is then another repetition of that in another relationship and the answer to that was yes, you can do so, of course the judge will have to decide the extent of the probative effect of that and how it will then go and facilitate the proceedings. But yes, in theory and in practice that can be used and it could be adduced as evidence if necessary, subject to of course, issues of maintaining confidentiality and disclosure in that regard. What this case Harvard was more about and which really looked at it in more detail, was in relation to the use of scott schedules, particularly when it comes to controlling and coercive behavior allegations. And this case was one whereby The relationships, there are two separate relationships that the father had and both of them were very similar insofar as the manner the way in which the father in this case controlled his partners. So in the first relationship you can see here, he formed a relationship with this lady who was later going to be somebody he marries and in fact he was, he was going to later have a child with and they formed a relationship very quickly. And then within literally weeks of that relationship beginning he began to discourage her from seeing her friends and family. He would join her whenever he met up with her friends and family. And he would really not not excuse himself And those friends were really warning her that they thought that didn't boyfriend was controlling her and that would be kind to get worried about it. So on one occasion, for example, the mother's mother has solved the maternal grandmother contacted her daughter to face time and the father answered the phone. He declined to put the phone through to the daughter and his connected the call. And sometimes he would actually listen to the messages on loudspeaker and he'd be there so you can see that he really did not allow his partner to have any any private time with friends and family in that regard. And that was an element, a significant element of controlling. And so he'd be present there. And obviously that caused huge difficulties going forward later, they didn't marry and they had a child together. And sadly, the level of control continued. So the mother was not very really communicating with her own mother. The maternal grandmother contacted the university to to regularly, but mother's privacy was guarded. And in fact, the grandmother then later discovered that her daughter had even left university. She's been she's been studying and she even left at university. And this was because the father had actually discouraged her from continuing to study in that regard. His mother was so worried about her own daughter that she called the police when the police went down to the mother's home and they said, look, could you tell my parents to leave us alone? We don't want anything to do with them. And the reason why she was in contact with her parents, she says, because they shouted at her. So again, you can see the level of control that this man was putting on her for several months. The father and mother changed accommodation on 16 different occasions. So that was done deliberately. The father did that deliberately to really try and isolate his his wife and the child and himself from any friends and family in that regard. And his lordship said that this behavior was not only controlling, but emotionally and psychologically damaging. And of course there was a financial uh dimension to it as well because the man had closed his partners, his wife's account and putting money in there. He used to give a very limited amounts of money. Sometimes she would take bus journeys to her parents home when she would just sit outside and watch the house, She'd cry there, she would never attempt to knock on the door, make her presence known. She just was too embarrassed and too frightened to do that. And uh he's the father said that he would transfer money to her account. But sometimes it would be literally a few pounds. So you can see the level of the control was incredible here. And therefore his lordship did say that some of the concerns were alienating family and the mother from friends and family controlling her money and the food. She had access to communication with the outside world was gradually reduced quite significantly as you can see. And those are some of major, major concerns that that was being raised in this case. And in fact, his lordship then specifically referred to uh the this judgment last year. This was a case of a county council of LW It was a quarter protection case and hear the quartered emphasized uh the the concept of controlling coercive behavior in the context of vulnerable adults. And his lordship said that this was highly relevant to the case that his lordship was in fact dealing with. And in particular, you can see it refers to for example, isolation of a person from their friends and family for example, deprived them of their basic needs. Which is what he was doing, monitoring their time, for example, which is what he was doing, monitoring the person's online communication using Spyware for example, to ah see what they're doing. Taking control over all aspects of their everyday life, where they were to go who to go with what they were when they can sleep. Private number of support services for example, and furthermore, repeatedly putting them down, making them feel that they're worthless. Obviously that's a significant form of domestic abuse himself. And also some of these other factors such as enforcing rules and activity which may humiliate them, which may dehumanize them, forcing them to take part from activities neglect or abuse of Children for example, self blame, financial abuse, controlling the finances. Which as you can see was a huge issue here in this case and electronic and ability to go to college or place of study. Which again is the point in this case, where he discouraged his wife from containing with university education. And also you can see other elements of controlling behavior in that regard. Taking wages, benefits or allowances threats to her to kill threats to harm a child such to publish private information uh and threats to her to physically harming your family pet, for example. So these were all instance and examples of controlling coercive behavior in that regard. And then you've got other examples as well, which his lordship emphasized, such as for example, assault, criminal damage, preventing a person from having access transport or working. So again, that was a future in this case, prevent them from being able to attend school college university, which again, was a feature on the facts of this particular case here. And then there's other aspects as well of this controlling coercive behavior, Family, dishonor disclosure of sexual orientation, reputational damage, disclosure of medical conditions, limited access to friends, family and finances, which again, was a big feature in this case. And his lordship did say that a number of these features therefore mirrored the behaviors in this guidance in this case. Now, subsequently this man then formed a relationship with another lady. He met another lady who had a child from appears relationship, she was a teacher, two met on an Internet dating website. And the relationship just like the first progress very quickly. So that's where the similar fact evidence comes in. And the mother of this other lady became very concerned that her daughter wanted to marry this man and she thought she really does annoying very well. And this was a step she was taking very quickly. And again. The communication between the mother and her own daughter became very limited. Again, just like the previous case, the similar fact evidence was there because he began to monitor the telephone calls again, in the same way he did, he would put the speaker loudspeaker and involve himself in the conversation. So very much like the previous case in that regard. And his lordship did say that these two women who had never met each other that came from very, very different life experiences mirrored the experiences that we're having with this man. They were both coerced into this distorted relationship which checked away their sense of self and personal autonomy. And they were very strikingly similar and hence the concept of similar fact evidence. And again, just like the previous case, even though uh this lady in the second relationship, but she was working as a teacher, he in fact even discouraged her from continuing to work and even made her resign her job in that. And you can see that she cried through identity. So you can see the level of um involvement in the level of control that this man had on her in that. And this is where his lordship did say that the relationship in these two relationships was very similar. Both women had been alienated from their families that lost their careers. Whether the mix of meat within weeks of meeting this man, um he was significantly limited their support networks, they controlled him financially in so many ways they were the elements of us. And this is where his lordship said that in these kind of cases, the law emphasizes the need to show a pattern of behavior and it can be very difficult for professionals to identify this type of abuse sometimes, because we're all almost programmed into thinking of scott schedules and almost particular rising the forms of abuse into into one or two. But his lordship said that that's where mistakes sadly can be, and often are made. So this is where his lordship did question the use of scott schedules in that regard. His Lordship said that he had been invited to make a comment on the use of scott schedule the table of allegations that we often do. The evidence relied upon his support many of us who have done these type of cases. You know, that courts bearing in mind the limited time that they have, and of course court restrictions, court limitations, the limited number of judiciary and the time that we have, there is a much heavier emphasis now than there has previously been to ensure that we minimize the time that's spent in dealing with calling evidence and litigating on certain matters. So even though there are advantages of carefully marshaling the evidence and breaking it down into allegations, his lordship said that in this type of abuse it may not in fact be the way and the appropriate way to do so by whether scott scheduled because actually may miss out vital things. Studies when you're looking at these types of relationships just as we've just seen with these two women, this was a form of controlling coercive behavior that went on for weeks, months years. It wasn't something that you can put in need compartments and say on this understated. This happened on this day, something else happened and litigate on that. Because if you limit your allegations to say four or 5 allegations, you could be missing out on vital information which is a lot more historical and therefore, which needs to be looked at cumulatively to then demonstrate that pattern of behavior and to be able to demonstrate that level of controlling and coercive behavior. Those are one of the things that his lordship said. Therefore that we could fall into danger of doing and therefore there could be particular instance which carry a lot of significance which sometimes may be obvious to an observer, but to which the victim has become and you did not regard. And therefore it was felt that there was a need to give serious regard to how to deal with that. So focusing on particular and specified instance. Main fact as his lordship said, be counterproductive. It may not actually be the way forward. So intense focus on particular specified instance maybe. And this was something that was raised by the Ministry of Justice and the report last year, there was a report some of you may have read last year called the harm to Children and parents and private law Children cases As of June 2020. And that was one of the aspects that was raised in that report. And his lordship did say that he considered that scott schedules do have severe limitations in this area and therefore to render them perhaps ineffective and frequently even unsuitable in these types of matters. So you can see the significant elements that were being raised there by his lordship. Now, his lordship did say that he would go further and question whether they are scott schedules were even a useful tool in these types of cases. And they were, like I said commonly being used in these types of situations. And uh his Lordship did say that because his lordship has then been asked as to whether or not we should then do away with the need and the use of scott schedules. But his lordship did say that that of course requires further debate and consideration. And that type of discussion needs to be had. And further consideration needs to be had with these president family division and also by more senior court, particularly the court of appeal. And that's exactly what happened. Because then some of you will be aware that earlier this year, on the 30th of March this year, we had this judgment handed down by the court of appeal. This is the case of HN and others Children, domestic abuse finding of fact hearing. So this was a 2021 decision handed down as a joint judgment by the President of family division, Lady Justice King and Lord Justice Holla Roid. That the cases have involved four pills each which involved allegations of Abuse by one parent against the other. And it's a very useful case because it goes to a number of elements surrounding the use of finding a fact hearings, for example, the use of scott schedules in particular. Uh the interrelationship between criminal law concepts and family law concepts and also the use of Practice Direction 12 J in relation to when allegations are being made in cases of child arrangements. So, this case then very much emphasis is that practice direction 12 J is still there. It's still fit for purpose as you know, it's very, very significant. Practice Direction that we should be using in these types of cases. So it's still there and it is still very much fit for purpose in that regard. And it does set out some very useful and detailed guidance on, for example, whether or not it's necessary to conduct a finding a factor in in respect of allegations of domestic abuse. All their bags of 56 17 in particular sets out types of situations where it may be necessary to list a matter for a finding effective and then what do you do in terms of getting the evidence ready in readiness for the finding of fact here and and what do you do in the meantime? For example, in terms of interim child arrangements, for example. So that's where you've got paragraphs 24, 26 for example, which looks at that it's a very useful and effective practice direction. But in relation to scott schedules, a court appeal said that any part of legal process to function fairly and efficiently is such that there does need to be essential, necessary material place before the court organizing such a way and structured in such a way so that the those involved in the process can then understand it. Look at it and and use it in making decisions. So that does need to be done. But the problem is that how do you do that when you've got case of coercive and controlling behavior. So this is where the court appeal specifically referred to the comments made by Mr justice Hayden in the previous case of f a name that I referred to. And the need for an agenda in Criminal Law proceedings is straight is more straightforward because you have a charge sheet. You have an indictment and a person and has to answer to that. So you almost do a pleading in that regard. But in these family cases where you're looking at welfare and you're looking at a pattern of behavior with the region and looking at how that's going to impact on the welfare determination thereafter. It's not as easy to be able to do that by way of a use of a scott schedule. And for a very long time, the court appeal said that the family courts have been expecting us when we are having a finding of fact hearing. They expected us to then ensure that our clients when I make allegations of domestic abuse are to file scott schedules. Uh, so that when they do witness statements, those are then reduced to uh allegation has been put into a scott schedule to then provide a numerical account of what they are relying upon. So that is what then will be determined and litigation on. But the problem is as we've just seen with coercive controlling behavior line of cases that there is a limit to the use of those in these circumstances. In fact, they could now be a potential barrier to fairness and good process rather than an age rather than aid and of course abusive controlling and coercive behavior is likely to have a cumulative impact upon its victims which cannot simply put together in a separate and isolated consideration of an individual instance, in the form of a scott schedule. It's not as easy to do that. And therefore the question was, what do we do going forward? How do you deal with this bearing in mind that the limitations of the use of scott schedules? What is felt that in these types of situations, what we need to do is we need to think of other ways of enabling that information to be tested. And this was something that the family procedure committee would need to be looking at in more detail. And there were a number of options in the meantime that the court appeal thought we need to give regard to. So if we are going to move away from the use of scott schedules, how do you achieve this? Do we do, for example, do a threshold type documents, some of you who do keep ceilings child keep scenes will know that local authorities prepare threshold type document where to set out. Again, it's almost in the american format, but it's more a where you get subheadings and then you've got a different instance and examples of that. Do we do that kind of threshold type document that was once suggested? Do we do formal pleadings by the particulars of claim that we've seen civil proceedings or do we do a narrative statement in the prescribed form, which is what many of us are perhaps familiar with. And in fact, the court appeal said that benefit of a narrative statement is that it allows you to focus on the overall nature of the relationship. It allows your client then to actually express the nature of relationship in their own words. So the overall nature of relationship and that helps the court and then decide whether there is any evidence within that witness statement to demonstrate controlling coercive behavior. So, such an approach allows the court and to identify at an earlier stage whether the allegation of controlling controlling behavior, of course, behavior is actually an issue or not because by reason, the witness statement, you'll see what what the nature of relationship between them is. And then identifying the form of harm which may be psychological and only then looking at that or the court then be in a much stronger position than they look at. Well, what specific facts do we then need to then determine that the finding effective. So putting it simply what many of you will find is if the court is then looking to list a matter for finding a fact. Hearing the may well then be directions first and foremost for scott schedules to be far for narrative statement to look at the overall relationship, then to have a ground rules. Hearing to look at that, to look at the nature of the relationship, to identify the type of alleged harm and then to look at what specific facts that need to be determined at finding a factory. So that's how many judges have now been doing this since this this decision. And the court appeal did say that we do need to undoubtedly therefore be moving away from the use of scott schedules in these cases. And it will be for others for the family procedure committee, for the practice directions for primary legislation to then look at rule changes in this regard. And this was something that the court did say the private law working party had already been looking at giving the amendments that they wish to make to practice direction 12 B in terms of the child arrangements program. And also there was the arms panel implementation group which we're looking at deeds recommendations with views and in formulating new practice guidance on this. So you can see in the meantime, the court appeal did say that for now in the meantime, therefore what we should be doing is we're finding a fact here in his felt necessarily only those allegations which are necessary of course should be determined and to do that. This is where, as I've just said, there is this requirement then for the parents to be asked to produce and provide an empire like court in short terms, whether it's in a written format or generally the overall experience of being in a relationship with the other person and that will help the court to then decide what specific facts that need to be determined at the finding of fact hearing. Okay, so very, very important for that to be done. So bear that in mind, right, for the last part of today, then what I want to do is to spend some time going through with you some of the key provisions insofar as the domestic abuse act 2021 and looking at what has already come into place or that you're clear going forward as to what the expectations are there. So let's have a look at somebody. Some of the provisions insofar as this is concerned that this act, a lot of which has already come into play as of October 2021 is one which has now brought in a new statutory definition of domestic abuse. This is something that we haven't had hitherto and therefore there is now a statutory definition of um domestic abuse. There was previous definitions, whether it's the government guidance whether it's a definition by the legal aid agency, for example, other agencies, but now there is an all encompassing definition which is to be used across all agencies and like states written within statute now under this act. So the actual itself consists of seven parts part one then looks at some elements of domestic abuse in particular in terms of definitions and and the effect of it and the different forms of domestic abuse and the act, which is to ensure that different types of relationships are covered, including particularly family members, former partners and those who are not cohabiting. It refers to those people who are personally connected. So the definition of domestic abuse is now written within section one of the act and it basically defines it as behavior by a person A towards person B is domestic abuse. If A and B are each 16 or over 16 years of over, they are personally connected and that the abusive and so that the behavior is abusive. Okay, so that's the that's essentially the definition as it is our behavior by A to B Where they are both 16 years or over. They need to be personally connected And he abuse behaviour has to be abusive in nature. Now the reason why we're looking at 16 All over is because say if there were under 16, so there were 15 years of age and a. Is abusive to be, then that would take the form of child abuse essentially. So there's obviously still protection available there. But then that's when you've got the Children act and you've got the provision expects about there. There's also the they need to be personally connected and I'll come back to that shortly and their behavior needs to be abusive. So what do you mean by abusive behavior? Well, this is where you can see the fact sheet and there's numerous of these, but the fact sheet of March last year looked at this as incorporating physical sexual abuse, violent or threatening behavior controlling a coercive behavior specifically refers to that which we've been discussing. It also incorporates economic abuse, which is a new form of abuse that has come in which takes this further than financial abuse. And it also incorporates psychological, emotional or any other forms of abuse. And it doesn't matter whether the abuse behavior consists of either a single act or a course of conduct. So in fact, it could be both. Okay, so that's really, really important. And like say, this is now written within statute in that regard. Okay. And in terms of Children, when we look at Children as being victims of abuse, this is where the act is very specific and looking at protecting them now, in terms Of who is personally connected. The definition is very similar to what we've got in so far as associated persons for the purposes of sections 62 and 63 of the Family Law Act of 1996. So it continues to incorporate, for example, spouses, former spouses, cohabiting these former cohabit ease people who are in an intimate personal relationship. So it incorporates that, although it doesn't interesting to use the words of the significant duration, it incorporates people who are certain relatives, for example. So, you can see the definition is very much in tune with the Family law act in that regard, but it's a far as Children are concerned. Section three of the Act specifically refers to the fact that uh provides that weird behavior uh towards another person who's domestic abuse than any reference to a victim. Does include a reference to a child who either sees or hears the abuse or experienced any effects officer. Let me just look at this with you for a moment. As many of you were known Children cases, We've been for a very long time being sometimes completed the form C1 a where we are relying upon the fact that the child may have seen or heard. So your father for example, being domestic abusive to their mother to the child's mother. And as you know, we do a C when I always specifically referred to that and that's obviously an element of harm. But now the act wishes to emphasis this part as well, which is where the child experiences the effects of the abuse. So, my suggestion on that would be that even if the child doesn't see or hear the abuse but they experience the effects of it. They see their parents afterwards where they are saying they've got facial injuries. For example, they feel very withdrawn or subdued for example. And that in itself, I would suggest comes within this definition and therefore when you're for example having private Children or disputes and say there is a scot schedule in an artist statement being put together those type of things. Other things. I would suggest you also perhaps need to be thinking about those of you who do public childcare cases and those of you who may be local authorities based. This is where when you're preparing your threshold documents for example, these are some of the things that you may need to be thinking about in putting in your threshold documents as well. All right. So those are some of the things that suggests you bear in mind. So this definition of domestic abuse Uh, for the purpose of practice direction 12 J came into effect on 11 August this year. It's a practice direction 12 J was amended. So you got the new paragraph two A and two b. Which incorporates this provision that I've just mentioned. And in so far as other parts of legislation And family in particular as after. 1st of October 2021. So just a few weeks ago, this revised definition of domestic abuse has now been incorporated. So very important for you to be using that. There are other provisions of the act as well which I just wanted to bring to your attention. Some of these other provisions have also come into effect now. So for example, uh, these particular provisions, domestic violence protection notices and orders. Now, these are also going to be changing. These are going to be piloted for awhile. So this won't be an immediate change. So the current law as it stands is if you say the police are called to the family home for example, and the alleged perpetrator has caused problems to their partner and save the Children, then the police can issue them with a domestic violence protection notice which requires them to vacate the property and not make contact with the other parents and the Children if necessary, potentially up to 48 hours and then the police can then pursue in the local Magistrates court, a domestic violence protection order, which can then keep the personal way From the family for between 14 2 28 days and breach of that is a criminal offense. Okay, so you've got that provision audience place. This has been in place for a number of years now. In fact since 2014. And the new law which like say will be piloted and this part has been brought in will be coming in as a result of the domestic abuse Act. And new provisions will provide for firstly a change in the terminology. So the new law is going to introduce these but referred to as domestic abuse protection notices. That it's that and domestic abuse protection orders sort of word violence Will be changed to abuse for this purpose is person. He still would not be able to be issued to people under 18. So there's still that requirement and only where the people need are personally connected. So that definition, it would still be there pursuant to section two subsection one, but the difference will be this. Not only will the domestic abuse protection notice served the same as the existing notice that we have, which will require some vacate the home and not to make contact with the other person for that period of time For up to 48 hours. But the difference is the abuse could have even taken place outside in the world. So that's one of the key changes there. But the other big change is in so far as the domestic abuse protection orders are concerned at the moment, the orders can only be applied for by the police in the magistrate's court. But now under the new provisions, these orders will allow the victim to apply in their own right. The police will still have to apply. And also relevant said parties will be able to apply and family members will be able to apply as well in that regard. So in fact, it's going to be opening up the doorway to enable other list categories of applicants in that regard. So you may find that Even local authorities as relevant. 3rd parties may be in a position to be able to apply for these orders as well. The judge will also be able to make these orders of their own volition doing existing court proceedings, for example, which don't even need to be domestic abuse related sell for example, in Children seeing these domestic divorce cases, financial remedy cases for example, so that will happen as well. And also with these new orders. Their will be provisions for disorders too. Then also have electronic monitoring as well. So that essentially the alleged perpetrator could be tagged and also they would be reporting requirements for them to actually report to, for example, of probation. Obviously it may appear okay, so these are going to be piloted in some areas and my understanding is this will commence at the end of this year with a view to them being piloted for a while, with a view to them is being implemented thereafter. So you can see the thinking behind these going forward. Okay. One of the other major changes, which again isn't in yet, but the act has provided for this. So, it's a question of really when the commencement order for this comes in is the position surrounding prohibition of cross examination. This as you can imagine, there's been a huge area and a very, very significant uh issue that as family practitioners we have been patiently waiting for. And a current position, as many of you will know is that when it comes to uh finding a factories, for example, we're talking about practice restriction. Trial J we've been talking about matters that are listed them for determination. The problem is when you look at cases such as Ps and BP, the 2018 decision for example, many of you will be familiar with. Whereas in this case a judge uh limited, uh, the allegations that mother raised of domestic abuse perpetrator by her former partner of two allegations. So she raised allegations that he raped her. Any subject to attempted strangulation, even though she had the benefit of lawyers representing her. The father, the alleged perpetrator who was the applicant for child arrangements did not have representation. So he was a litigant in person and the judge was not going to allow him to cross examine her mother directly on the easel elements. So the judge, in fact, I invited him to give his questions to judge. And it was a judge who put those questions to her mother that led to the appeal. Because the judge it was argued was not as robust as a judge should have been in testing the evidence. And that really my view typifies the difficulty to say we were by putting the questions to the mother in this case and always being put forward to a mother by the, but a judge is not always appropriate. It puts the judge in a very difficult position because of course they need to be ensuring impartiality, but because public funding is very, really available for the applicant in these circumstances, given the allegations against them. If they're unable to pay for a lawyer to unable to get legal aid, often they will be a litigant person. And then there's the dilemmas finding how you test the evidence. Well, this is where the act is going to address this because now you can see these provisions will come into play under a new part Provisions for B to the Match Modern Family Proceedings Act of 84. So that firstly there'll be section 31 R. Which will change so that there will be a prohibition of cross examination where a person is a victim of various offenses. So if the father, for example, has been convicted, caution or charge of a specified offense which hasn't yet been defined, my guess is it will probably be many offenses against a person other than maybe some of the more minor offenses such as common assault or battery. Then he will be prohibited from costs examining. And uh he's the alleged victim will be not required to directly cross examine the person themselves. Uh 31 S. Is the part where if the mother, for example, is the benefit of an unknown his protective injunction against the father. And again, he will be prohibited from cross examining her into a circumstance. And she would move required to personally cross examine him. 31 T. Is prohibition in cases wave to his evidence, domestic abuse. Then again, they will bid up prohibition uh to prevent him from being cross prevent him from cross examining in that Case. And finally, 31, you will be the judge will have discretion in these other cases. So if for example, the quality conditionally significant distress condition is met. So if the quality of the evidence that the mother is to give will be improved us, he's not allowed to cross examiner and if by allowing her to be cross examined by him, it will cause a significant distress. And that's where the judge would have discretion to not allow him to cross examine her. But in what happens in that case, how do you then test the evidence? Well, now finally, and this is a key change is now we're finally going to have this provision whereby in fact it will be the cord who will now be able to pay for a lawyer and advocate basically to be available for the father in those circumstances so that they can in fact put the questions to her mother on behalf of the father. So rather than legal aid agency being called upon to do this, the court services to the Secretary of State will now allow an advocate just like we're doing for an obscene is under section 36 38 will do the same thing here. Now in family cases where a lawyer will be appointed not to represent them on all elements, but more so to put those questions to mother on behalf of dad to test the evidence. So therefore, these are these new paragraphs 31 W, X, Y and zed of the 1984. Have a look at that's obviously as I've suggested here, there will be that equality of arms for both in these family person is to make sure the evidence is therefore appropriately and rightly tested in these circumstances. So you can see the thinking behind that. Okay, so bear that in mind and you can see therefore a number of key issues surrounding the position with with that there are other elements of the domestic abuse Act of 2021 as well. Those of you who may advise and housing, for example, there are some provisions in relation to housing and secure tendencies and lifetime tendencies and that's from the 1st november this year. There will be, for example, the the role of the the domestic abuse commissioner coming into effect. You will then be reported to Secretary of State every year. So there are other changes as well which are worth looking at when you do get the chance to look at the act in more detail. Okay, so that then brings this session session for two and in fact it brings this course to an end. So this was as you know, the three hour course where I've spent a fair bit of time than going through with you various elements of updates in family and matrimonial proceedings and Children case in particular. So we looked at finances, we've looked at divorce, we've looked at the position of capitation. We've looked at private and public Children will like say, domestic abuse as well as a number of key elements which I hope have been useful for you. Thank you very much indeed for listening. I hope that's been a useful set of sessions for you, and I'll speak to you next time. Thank you very much, indeed. All the best. Bye for now.
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