Domestic Abuse and Civil Proceedings Act – The Criminalisation of Coercive and Controlling Behaviour
20 November 2022
Family & Matrimonial
The Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 which came into effect in February 2022, represents a crucial development in Northern Ireland’s response to domestic violence, and crucially, criminalises coercive and controlling behaviour.
It is unknown how the Act will be interpreted and more still needs to be done to protect victims of domestic violence; however, the Act remains a positive development in addressing the high rates of domestic abuse which is reported on average every 17 minutes and accounts for 20% of all recorded crimes in Northern Ireland.
The Act focuses on the protection of domestic abuse victims in family and civil proceedings, and overlaps the criminal and civil spheres when there are complaints of domestic abuse. Section 1 of the Act created the offence of domestic abuse if a person engages in a course of behaviour that is abusive of another person who is ‘personally connected.’ The behaviour must be considered by a ‘reasonable person’ to be likely to cause the other to suffer physical or psychological harm, done intentionally or recklessly.
Notably, Section 1 does not state that physical violence has to be caused, which shows the Act recognises that domestic abuse is not always physical. This is welcome legislation as, in reality, some of the most insidious and damaging domestic abuse occurs where there hasn’t been physical violence (although often there is both).
Women’s Aid have described the effects of coercive control as, ‘creating invisible chains and a sense of fear that pervades all elements of a victim’s life…experts like Evan Stark liken coercive control to being taken hostage…the victim becomes captive in an unreal world created by the abuser, entrapped in a world of confusion, contradiction and fear.’
What amounts to abusive behaviour?
‘Course of behaviour’ is not defined in the legislation. Section 2 of the Act defines the abusive behaviour to include violence (including sexual and physical violence), threatening behaviour and behaviour directed at the child of the victim to force compliance of the victim.
The effect of the behaviour is to make the victim subordinate, isolated from support, controlled and regulated in their daily activities, restricting the freedom and/or making them feel frightened, humiliated, degraded, punished or intimidated.
Sections 3 and 4 go on to further define the behaviour as including the possibility of harm. Interestingly, the offence can be committed whether or not the behaviour actually caused harm. It includes any acts or omissions which covers the ‘coercive control’ element. An example of failing to do something may be, for example, as a punishment failing to transfer money to a financially dependent spouse which results in that person being deprived of access to resources.
The wide scope of the definition may cause problems for practitioners, victims as well as alleged perpetrators being accused of the abusive behaviour. Is a husband showing his wife how to cut an apple a form of abuse capable of criminal conviction? It’s an innocuous act and arguably helpful or even just (merely) annoying. For the wife, she may feel the husband has repeatedly belittled her that she cannot even cut an apple. The apple ‘incident’ in an example that actually occurred in a case I worked on where the English court did made findings of abuse against the husband, but albeit against a backdrop of other allegations. It serves as an example of the difficulty of interpreting what exactly will fall under this Act.
It may be the entire relationship will need to be dissected, the risk of which is that the court could become a battleground for adult conflict which may raise allegations that are very difficult to defend, which under section 12 of the act, is to show that the course of the behaviour was reasonable in the particular circumstances.
What is a personal connection and an intimate personal relationship with each other?
Section 5 defines the meaning of a personal connection to include two people that have been married, civil partners, living together or lived together, members of the same family and those who are, or have been, in an ‘intimate personal relationship with each other.’ What exactly constitutes an intimate personal relationship is not defined in the legislation, which could give rise to a debate focusing on who is protected under this legislation. It is common in modern society for couples to live separately posing the question, when does their relationship become an intimate personal relationship? Will a one-week relationship be sufficient? Under England and Wales’ legislation, s.62(3)(ea) of the Family Law Act 1996, the definition of an Association person is, ‘have or have had an intimidate personal relationship with each other which is or was of significant duration.’ However, this legislation also does not clarify what is ‘significant duration and it will interesting to see how the courts interpret what an ‘intimate personal relationship is.’
Presence of a Child
If a person is convicted under the Act, it is relevant in the family proceedings in terms of residence and contact orders. Section 9 creates a statutory aggravator when the abuse involves the presence of a child, or made use of a child in directing the behaviour at the victim. The child does not have to have any awareness or been adversely affected. It is important to note here that in studies of children’s experiences of coercive control in families where physical violence was not a regular form of abuse, children exhibited the same negative outcomes as those who had lived with more frequent physical abuse.
When the victim manages to escape the relationship, child contact provides coercive control-perpetrating fathers with opportunities to continue their abuse and opportunity to use the same tactics of coercive control against their children that they used against their ex-partners, causing the children the same kinds of psychological and emotional harm and constraining their lives.
It is therefore a positive development under Part 2, Section 35 of the Act, that the family court must have regard to any conviction for an offence of domestic abuse or aggravated by such abuse when determining residence and contact orders. This will hopefully limit child contact orders and family proceedings being used as a weapon to perpetuate abuse and mitigate the risk to the child. It is important that family law practitioners are aware of the criminal proceedings and/or any relevant conviction.
The Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 is therefore welcome in protecting victims of domestic abuse in family and civil proceedings by criminalising harmful behaviour that had hitherto not entirely been covered by legislation. However, how the Act will be interpreted is yet to be seen and the wide scope of the definition may cause issues to practitioners, victims of abuse, and alleged perpetrators.
This article is for general guidance only and should not be regarded as a substitute for professional legal advice.