My thirteenth story of injustice is typical of the large volume of evidence the Bach Commission received because of the hardships caused by the rule that only evidence of domestic violence (according to tightly prescribed requirements) will be admissible to open the door to legal aid in family matters. The Government is now involved in consultation over ways in which some of the obvious hardships their rules have caused may be mitigated, but in the meantime people (particularly women – and their children) go on suffering.
A wife who was kept in a shed
Ms P’s in-laws and her husband subjected her to ongoing abuse. She eventually developed serious health conditions for which she needed urgent access to medical care. For two years, she was in and out of hospitals. At one stage, her in-laws visited her in the hospital and told her that she would never recover and she was better off dead. As a result, she became suicidal and she was kept on ‘suicide watch’ by a nurse.
She was discharged from the hospital and returned to the matrimonial home. There she was kept in a shed at the back of the house which led to a deterioration in her health. She was kept in the shed for one year even though all the professionals involved knew about her home circumstances.
Her father eventually contacted Southall Black Sisters and we managed to get her out of the matrimonial home. Ms P cannot apply for legal aid for divorce and make claims for financial support or relief because none of the professionals involved recognised her situation as a case of domestic violence. For example, the hospital recorded her experiences as ‘family problems’.
Without proper recording of domestic violence, Ms P cannot obtain the evidence needed to obtain legal aid and to pursue legal remedies for the abuse she suffered.
I have recited some of the submissions the Bach Commission received on this troublesome rule in the fifth of my Stories of Injustice.
The Family Law Department at Simpson Millar LLP told us:
The requirement for “acceptable evidence” from the police does not deal with the reality that many victims who do report an incident to the police then fail to press charges. In our view evidence of repeated call outs to the police even where no further action is taken at the request of the alleged victim should be sufficient evidence to satisfy the Legal Aid Agency.
The requirement to produce evidence in the forms specified still doesn’t reflect the reality that most victims of domestic abuse do not report the incidents – Women’s Aid say that on average a woman will be assaulted 35 times before reporting it to the police.
The term domestic abuse doesn’t only include physical violence, but describes any abusive behaviour repeatedly used by one person to control and/or dominate another person with whom they have had an intimate relationship. It also includes the exertion of control and/or domination of one family member over another. Financial, emotional and psychological abuse victims often don’t recognise they are being targeted.
The evidential requirements do not reflect the fact that the behaviour often experienced by the victim may not look intimidating or coercive if each incident is looked at in isolation but when looked at over a period of time a pattern of behaviour is evident.
A victim of emotional or financial abuse may report that pattern of behaviour to the police but if there is insufficient evidence to prosecute for a criminal offence that victim would not then meet the evidence requirements to obtain legal aid and access this legal advice which could help her separate from her abuser and protect her children.
The requirement that written evidence of admittance to a refuge is the only acceptable evidence from a domestic violence support organisation does not reflect the fact that many people engage with support organisations in other ways. Many of the domestic abuse organisations that we work closely with offer support to victims in the community rather than refuge facilities. In our view evidence of any engagement with a domestic abuse support organisation should be sufficient to meet the Legal Aid Agency’s requirements.
Women’s Aid told us:
Women’s Aid welcomes the changes that were made to the Legal Aid regulations, increasing the time limit for evidence to five years, in April 2016 after a Court of Appeal ruling resulting from a Judicial Review case brought by Rights of Women. However, the regulations must be further altered to ensure that all survivors of domestic abuse are able to access legal aid. The guidelines should include further forms of permissible evidence, such as:
- A letter from a specialist domestic violence support service confirming that a survivor has sought help from that organisation.
- A letter from the 24 Hour National Domestic Violence Helpline that confirms the woman has contacted the helpline due to their experience of domestic violence.
- The Legal Aid Agency must also ensure that survivors of domestic abuse do not have to pay for the evidence required for their legal aid applications. Women’s Aid are concerned to hear from some survivors of domestic abuse that they are being charged up to £50 for a Doctor’s note to accompany their application. For some women this is simply not possible.
- The issue of limited access to legal aid for survivors of domestic abuse is particularly pertinent with regards to child contact cases in the family courts.
Southall Black Sisters told us:
We are concerned that although a range of organisations provide support to victims of domestic violence and carry out risk and needs assessments based on widely accepted domestic violence assessment tools, they are not deemed as valid sources of evidence. The ‘gateway criteria’ stipulates that only evidence from a closed and prescribed list of sources is acceptable.
For example, the only acceptable evidence a domestic violence support organisation can provide is confirmation that the woman has been referred to a refuge. This is extremely restrictive given that many black and minority ethnic (BME) women who flee domestic violence do not report to outside organisations for a number of very valid cultural and religious reasons, or due to the lack of secure immigration status or mental illness or disability or due to mistrust and lack of awareness of their rights. Indeed, lack of immigration status prevents many migrant women from accessing refuges because refuges will not accept women who cannot access welfare benefits or pay the rent.
No account is therefore taken of the social realities of women from extremely vulnerable and marginalised groups. Moreover, no account appears to be taken of the fact that women often find it extremely difficult and traumatic to reveal the true extent of violence, especially sexual violence, that is experienced or that many only reveal to a trusted specialist BME organisation that is likely to be their first and only port of call.
When Baroness Scotland QC pressed a relevant amendment on the Government at the final stage of the LASPO Bill in April 2012 she said:
As for why I am pressing our amendments, although the time limit is a huge issue of importance, so is the scope. As the noble Lord knows, if one has a valid claim, the only criteria or gateway ordinarily required is that cogent evidence or information be brought before the court to persuade it that that assertion is correct and valid. The imposition of the time limit on this occasion is not justified in view of the way in which domestic violence occurs—it flies in the face of our deep understanding of that phenomenon.
It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to CABs or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant—victim—will not be able to rely on that for legal aid…..
We have a choice to make today. It is about the quality of the country we wish to live in. Domestic violence victims are the most vulnerable. One in four women will be affected by this, one in six men and 950,000 children. I ask the Government to think again. It will be too late to say we are sorry when we find that because we did not give legal aid in relation to ancillary and other proceedings to genuine victims, people died.
This is not a case when we can say, “We do not know. We hope it will not happen”. We have the empirical data. Over the last 30 years, we have learnt those lessons, so it is not a case of, “If we do this, it will be all right”. From my 35 years’ experience in this area, I can tell the House it will not. What we do really matters. There are women and children in this country who are frightened today because of what we are doing in this Bill, and if we wish to assist them, we will ask the other place to think again.
… I will be asking the House to support me for one last time on this matter. The Government may have their way. This may be the final time we speak on this issue. I understand that this ping must have its final pong, but this is the last throw of the dice and it is important that we ask the Government to think again. The reason why the churches, charities and third sector organisations are all supporting this amendment is that they have to deal, day by day, with the reality of what we will do. I therefore beg to move.
Her amendment failed, on a tied vote. As so often happens, the inevitable has ocurred. And much avoidable suffering has followed in its wake.
Is this justice?