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Domestic Abuse Act 2021, Section 63 — Special Measures in Family Proceedings: Victims of Domestic Abuse

Jurisdiction: England & Wales · Citation: Domestic Abuse Act 2021 (c. 17), section 63 · Authoritative source: legislation.gov.uk — s.63

The statutory presumption — implemented through Family Procedure Rules — that a party or witness who is, or is at risk of being, a victim of domestic abuse is to be assumed vulnerable for the purposes of special-measures directions in family proceedings. Critical to PA cases because it shifts the procedural starting point: where DA is alleged (whether the alienating-conduct itself or cross-allegations of DA from the alienating parent), the court must apply the vulnerability presumption rather than requiring the party to prove their vulnerability case-by-case.

Verbatim text (current consolidated)

63 Special measures in family proceedings: victims of domestic abuse

(1) This section applies where rules of court provide that the court may make a special measures direction in relation to a person ("P") who is a party or witness in family proceedings.

(2) Rules of court must provide that where P is, or is at risk of being, a victim of domestic abuse carried out by a person listed in subsection (3), it is to be assumed that the following matters are likely to be diminished by reason of vulnerability—

(a) the quality of P's evidence;

(b) where P is a party to the proceedings, P's participation in the proceedings.

(3) The persons referred to in subsection (2) are—

(a) a party to the proceedings;

(b) a relative of a party to the proceedings (other than P);

© a witness in the proceedings.

(4) Rules of court may provide for an exception to the provision made by virtue of subsection (2) where P does not wish to be deemed to be eligible for the making of a special measures direction by virtue of that subsection.

(5) In this section—

"family proceedings" has the meaning given by section 75(3) of the Courts Act 2003;

"relative" has the meaning given by section 63(1) of the Family Law Act 1996;

"special measures" means such measures as may be specified by rules of court for the purpose of assisting a person to give evidence or participate in proceedings;

"special measures direction" means a direction by the court granting special measures.

Implementation — Family Procedure (Amendment No. 2) Rules 2022

Section 63 was implemented through the Family Procedure (Amendment No. 2) Rules 2022 (SI 2022/789), which amended Family Procedure Rules Part 3A and added new Practice Direction 3AA on participation directions. The implementing rules in force from 1 October 2022 establish the operative special-measures menu, including:

  • Screens to prevent the alleged victim from seeing the alleged perpetrator
  • Video link for evidence-giving
  • Pre-recorded evidence-in-chief
  • Cleared public gallery
  • Removal of wigs and gowns (where applicable)
  • Communication aids for witnesses with communication difficulties
  • Intermediaries under the Youth Justice and Criminal Evidence Act 1999 s.29 framework, extended to family proceedings

Why this matters for PA

  • The presumption shift is the critical change. Pre-2022, a party in family proceedings had to apply for special measures and persuade the court that vulnerability was made out. Post-2022 (under s.63 DAA 2021 + FPR Part 3A as amended), where DA is alleged from any of the three triggers in s.63(3), the court must assume vulnerability unless the party opts out under s.63(4). This is procedurally significant in PA cases that involve DA cross-allegations.
  • Section 3(b) — "relative of a party to the proceedings" catches alienating-parent-supporting wider-family members. Where the alienating parent's mother, father, or siblings are giving evidence and are alleged to have been part of the alienating conduct, the targeted parent qualifies for the vulnerability presumption.
  • s.63(3)© — "witness in the proceedings" — extends to allegations against a CAFCASS officer or other professional witness, where applicable. Rare but operative.
  • Linked to s.65 DAA 2021 — the ban on cross-examination of alleged DA victims by alleged perpetrators in person (in force in 2022) — which works in tandem with s.63 to provide an integrated procedural-protection framework. Together they reshape the family-court experience for DA-affected litigants.
  • Risk of misuse — a critical practitioner concern: alienating parents who make false or exaggerated DA allegations also qualify for the s.63 presumption. The presumption applies on allegation / risk of being a victim, not on findings. This generates litigation about when to "see through" the presumption, particularly in entrenched PA-cross-allegations cases.

President's Guidance and post-2022 practice

  • President's Memorandum on Witness Statements and the Family Procedure Rules (2022) addresses the integration of s.63 with the broader fact-finding framework set out in Re H-N and Others (Children) [2021] EWCA Civ 448.
  • FPR 3AA now requires the court to consider participation directions at the first hearing — typically the case management hearing. This means special-measures issues are surfaced at the front of proceedings rather than at trial.
  • 2024 Family Justice Council guidance on alienating behaviours addresses the s.63 presumption's interaction with PA-cross-allegations cases, recommending careful judicial attention to whether the presumption is operating to disadvantage the targeted parent where the alienating parent has made unfounded DA claims.

Sources & authoritative references

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