This is the fifth instalment in the series of stories of injustice created by the cuts to legal aid and to institutions concerned with the administration of justice. The four earlier stories have illustrated:
The injustice created because although legal aid is available in ordinary possession proceedings, it is not available when the applicant lives in a mobile home and is threatened with eviction from his pitch;
The injustice caused because the staff of the Legal Aid Agency had been instructed to adopt a very restrictive approach to the grant of exceptional case funding even when the applicant’s circumstances cried out for it;
The injustice caused because legal aid is available for possession proceedings but is not available for advice about housing benefit entitlements, even when possession procedings have been issued because housing benefit is being wrongfully withheld;
The injustice that may have been caused because the level of legal aid remuneration is no longer adequate to attract experienced criminal lawyers to undertake a case that called for skilled preparation and advocacy.
In this fifth story I illustrate an injustice that was repeatedly mentioned in the evidence which the Bach Commission has received (see below). It stems from the fact that the criteria governing the availability of legal aid in family law proceedings have been very restrictively drawn. In February 2016 the Court of Appeal declared elements of the Legal Aid Agency’s approach to be illegal, and after taking immediate action to extend to 5 years the period in respect of which evidence of domestic violence would be deemed admissible the Government has also been consulting on ways which might mitigate some of the very obvious hardships of the previous regime. However, they were clearly warned about the likely consequences before the new scheme was set up three years ago, and much avoidable suffering will have followed as a a result.
The story of a Pakistani mother and her child
Mrs. C had suffered a history of abusive behaviour from her husband. She reported the abuse to Social Services at the time. When she was pregnant in 2011, he abandoned her in Pakistan but she was able to return to the UK.
In 2013, Mrs. C and her child were again stranded abroad in Pakistan by her husband but she managed to instruct a solicitor in the UK from abroad.
In 2014, wardship proceedings were commenced in the High Court to compel the return of both Ms C and her child. Legal aid was available to her, and she was represented by an experienced firm of family law solicitors. During the wardship proceedings the judge made a finding that the father was essentially concealing the passports of both mother and child.
In late 2014, a year after being abandoned, Ms C and her child were returned to the UK and the wardship proceedings were discharged and the case transferred from the High Court to the family court. The father then applied for a child arrangements order that the child live with him. Ms C could only obtain legal aid to be represented in respect of this application if she could demonstrate that she was a victim of domestic violence.
An application for legal aid was made to the Legal Aid Agency (LAA) explaining the abusive circumstances and enclosing the High Court order which stated that the father had abandoned Ms C and her child in Pakistan. Legal aid was refused because the LAA did not believe that abandonment fell within the definition of domestic violence, so that Ms C could not meet the domestic violence ‘gateway criteria’ for legal aid in relation to the application brought by the father. Ms C’s report to social services in 2011 could not be submitted as evidence because the legal aid regulations provided that evidence had to be dated within the last two years of her application.
As a consequence of the refusal of legal aid Ms C was initially forced to represent herself, but she had difficulties explaining her position. Neither the judge nor the CAFCASS officer appreciated the significance of her abandonment in the context of domestic violence. Indeed, the CAFCASS officer believed that Ms C had abducted her child to Pakistan rather than the opposite – that she had been stranded there with her child.
Eventually, the firm of solicitors she had previously instructed represented her on a pro bono basis at the next hearing and explained the situation to the judge. The judge specified in an order that the High Court judge’s finding amounted to a finding of controlling and coercive behaviour and that this constituted domestic violence. The order also requested the LAA to grant legal aid to Ms C.
Ms C’s solicitor then had to apply for legal aid again to the LAA, setting out at length the definition of domestic violence that is accepted across government departments, and she had to make considerable representations explaining how and why the abandonment experienced by Ms C and her child constituted domestic violence. Eventually, the LAA agreed to grant Ms C legal aid.
Ms C’s solicitor is of the strong view that without her firm’s resources and her specialist expertise in domestic violence and international family law another solicitor would not have been able to identify the issue of abandonment as a form of domestic violence or to argue the point persuasively with the LAA.
The Bach Commision has received evidence along these lines:
Although victims of domestic violence remain within scope, the narrowness of the evidence requirements for legal aid funding in these cases means that many victims of financial, sexual and emotional abuse as well as less overt physical abuse, who are often unable to obtain the required evidence, are now faced with the prospect of self-representation if they need to access the family court. This is by no means a small proportion of victims – Rights of Women (ROW) have estimated that even despite amendments to regulations in 2014, that 40% of its users were denied access to legal advice and representation, and this is likely to be a significant underestimation, as it does not take into account victims who did not make use of their services or make a legal aid application. This means that many domestic abuse victims, along with many individuals also contending with very serious problems such as disputes over children, must self-represent if they are to get their cases to court.
(Centre for Law & Social Justice, Leeds University)
The two-year cut-off date was applied strictly without a common sense use of discretion. For example, we acted for a mother (M) where the father had been convicted and imprisoned for serious criminal offences in 2010, which included assaulting M. M was a witness for the prosecution and such were the concerns for her safety at the hands of F, she was advised by the police and social care to relocate out of the area which she did. SAhe also changed her and the child’s name. In 2011 (pre LASPO) we had represented M, with the benefit of legal aid, in Children Act proceedings regarding her young child as the father was seeking contact. Clearly M was in fear of her own life and that of her child who had been exposed to domestic violence. At the end of the family proceedings an order was made for indirect contact between F and the child annually. In March 2013 F was released from prison and applied for Legal Aid to pursue an application for direct contact-prior to the changes. The application for contact was listed after April 2013 and therefore M was not entitled to legal aid as the application was made post LASPO and there had been no recent domestic abuse incidents as F had been in prison. An application for Exceptional Case Funding (ECF) was made and refused.
(Simpson Millar LLP, Solicitors)
In the family courts since the cuts Legal Aid was only available until very recently if there had been evidence of domestic abuse or child abuse in the last two years. That can take some proving. The Ministry of Justice has set a very high and bureaucratic threshold, requiring written proof, such as a letter from your GP (that might cost £75), or proof from a court (cost £60). As one of our members who is a legal adviser in a family court has put it:
“To break free and survive domestic violence you need support, not bureaucratic obstacles.”
We can only guess at how many potential litigants in person simply feel unable to try and access justice alone.
(Public and Commercial Services Union)
Even those who Parliament intended to help can be refused legal aid. Some prescribed evidence documents don’t persuade the Legal Aid Agency (LAA) even if they objectively give the answer. For example, one of our members recently supported a client who presented to their GP. The GP’s letter stated that
“… disclosed to me that her current husband has been violent towards her. Hit her on a number of occasions. She tells me that he’s also forced her to have sex with him against her wishes… She is naturally very low in mood and I have referred her to primary care psychology for further advice and counselling.”
In response to the letter from the GP, the LAA denied legal aid stating “it is considered the evidence of actual or potential domestic violence provided does not justify the grant of public funding” and expected a second letter from the GP using template wording.
Our research shows that even with the 24 month time limit removed, 14% of domestic violence victims/survivors will not have the required documentation to evidence domestic violence. The regulations do not identify as victims of abuse those women who are seeking to leave long term coercive and controlling relationships where the abuse has not been reported to the police or where it has been reported but the police have considered they do not have enough evidence to pursue the allegations.
(Rights of Women)
Despite recent changes to the ‘gateway criteria’ in domestic violence cases, a significant number of Black and Minority Ethnic women in particular are unable to evidence domestic violence in family cases because:
Often, they do not recognise that the abuse and oppression they are suffering can be defined as domestic violence and so do not report their experiences to any outside body;
Many are imprisoned in their own homes and/or are ignorant of their rights and/or do not know how to navigate the legal and welfare system and are therefore unable to seek help and support;
They fear isolation and destitution and so stay in abusive relationships;
They fear violent reprisals or deportations in circumstances where their immigration status is insecure or they are afraid of a family/community backlash and so do not report to any professionals or statutory agencies;
The closed and strictly prescribed list of ‘evidence’ required by the LAA to prove domestic violence means that even where women do have some evidence, unless it is in the prescribed form, it is rejected;
Inconsistencies between government agencies as to what forms of evidence of domestic violence will be accepted;
Difficulties in providing evidence that relates to incidents of domestic violence suffered abroad;
The failure of the LAA to recognise certain forms of domestic violence such as transnational marriage abandonment and financial and emotional abuse which are in any event difficult to evidence.
(Southall Black Sisters)
Is this justice?
-  Rights of Women, Evidencing Domestic Violence: Nearly 3 years on (Rights of Women 2015). Also see further: Rights of Women, Evidence to the Justice Select Committee on the Impact of Changes to Legal Aid, (Rights of Women 2013), 3.