Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Family Law Bar Association (LA 20)

Introduction – legal aid in family cases

1. In the Legal Aid, Sentencing and Punishment of Offenders Bill ("the Legal Aid Bill") proposals for the reform of Legal Aid in family cases are principally to be found in

(a) Clause 8;

(b) Clause 9 (exceptional cases) [1] .

(c) Clauses 45-50 (interim lump sums in financial remedy cases);

(d) Schedule 1 (what is in scope).

2. It is apparent that much of the detail will be contained in regulations [2] .

Timing of reform: the Family Justice Review

3. Proposals for the reform of Legal Aid in Family Justice should await the final report of the Family Justice Review: The Government rightly acknowledges the valuable work of the Family Justice Review running in parallel with the legal aid consultation; it recognises that the Family Justice review is considering options for a quicker, simpler, more cost-effective and fairer system, whilst continuing to protect children and vulnerable adults from risk of harm [3] .

4. The FLBA maintains that while proposals for the reform of the justice system are ongoing, the Government is wrong to be forging ahead with its reform plans for legal aid. The two are inextricably bound together, though the work of the FJR is more profound and far-reaching.

5. For instance, the removal of large numbers of people from the scope of legal aid will inevitably bring many more litigants in person into the family courts; this will have the inevitable and serious consequence that the courts will become ‘clogged’ with unrepresented parties. The Family Justice Review is concentrating on addressing (and removing) the weaknesses from the system, and building on its strengths; in this respect, the Family Justice Review (in its interim report) observes:

Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. This complexity will, as a result, become an increasingly important weakness [4]

6. More surprisingly, the Government maintains that the proposals for the reform of Legal Aid "complement the aims" of the Family Justice Review. In significant respects this is simply not right.

7. How can it be said that the Legal Aid proposals ‘complement’ the aims of the Family Justice Review? In the first instance, the Family Justice Review has proposed [5] a radical re-organisation of legal aid – namely that it be part of the overall budget of the Family Justice Service;

Family legal aid is a major part of the government spend on family justice. Were it managed as part of the overall family justice budget there would be opportunities to shift money between activities, from court work to mediation for example. The Family Justice Service should manage relationships with mediators, legal providers and experts. In time, with responsibility for the legal aid budget, it could procure their services.

These proposals pre-empt the implications of the new budget structure.

8. Furthermore, the Family Justice Review has expressed its profound concern about the "significant" number of private law cases in which there is identifiable risk of abuse; the FJR report that:

"Serious child protection concerns are raised, or come to light, in a significant proportion of private law cases . Where there are concerns for the child’s safety or for a vulnerable adult swift and decisive action must be taken to protect them ".

The Government’s proposals do not capture all, or even very many of, these cases.

9. Further, the FJR is still investigating the "overlap between public and private law" [6] ; it is therefore quite wrong for the Government to press ahead with proposals in relation to legal aid for cases involving suspected child abuse until this research is concluded.

10. Moreover, the FJR contemplate that a number of cases will require court intervention (and that "the judiciary remain central to the successful management of cases" [7] ) namely: "those with significant complexity, a point of law or pivotal point of fact to be considered, or where there are serious welfare concerns" – this covers a wider range of cases than those contemplated by the Legal Aid Bill and Response to consultation [8] . The cases will not be captured by the modest revisions to the legal aid proposals.

Scope: Generally:

11. Proposals for the removal of large numbers of cases from the scope of Legal Aid remain largely unchanged, even though there is virtually no support for the proposed reforms. The proposal to remove from ‘scope’ large numbers of private law cases has serious implications for the public, and for the courts. Significant numbers of parents facing the turmoil and stress of family breakdown will not be entitled to legal advice or assistance; this has fundamental implications for their access to justice, and serious implications for the children caught in the midst of their disputes.

12. Abolishing legal aid for those seeking legal advice and representation in private law family cases is manifestly wrong; this is underlined by the almost unanimous response of the respondents to the consultation. A paltry 3% [9] of the respondents to the consultation supported the Government’s proposal to remove large numbers of cases from scope. The Government appears to ignore that overwhelming reaction by declaring itself satisfied that:

Although a significant majority of responses disagreed with the proposals, the Government remains convinced that reform is necessary to avoid unnecessary litigation, reduce the cost of legal aid and deliver better overall value for money. [10]

13. The Legal Aid Reforms pursue this policy on ‘scope’ disproportionately, by effectively barring litigation in excluded areas, taking an irrationally narrow view (which is not supported by the extensive empirical evidence) of when litigation might remain "necessary".

14. The Government responds [11] to this vital issue with some very general comments about three "factors" which "will help to mitigate" the impact of removing legal aid from private family proceedings; it is our view that these factors (i.e. mediation and interim lump sums) will in fact apply to relatively few of the cases. It surely cannot be expected that the unspecified "other avenues of support and advice to the extent they remain available" are likely to have much, if any, impact (whatever they are).

15. In short, we believe that the Government is not listening to the views of those who have an interest in protecting access to justice by the most vulnerable.

Scope: Litigants in Person

16. Litigants in Person: The Government has failed to acknowledge the serious impact on the court system of the increased numbers of Litigants in Person by reason of its ‘scope’ proposals. The Government’s own literature research (commissioned alongside its response) reveals that the public will face:

(a) poorer case outcomes,

(b) longer delays in resolution of cases,

(c) lower prospects of settlement, and

(d) vulnerable people forced to present their own cases.

The Government’s ‘literature research’ on the impact of litigants in person on family cases confirms the representations of the many respondents to the consultation, who spoke of the harmful effect on the court system of the inevitable increase in the number of Litigants in Person in the family courts. Notably, reference to the LIP review in the Response is rather patchy. While reference is made to delay, the finding of "poorer outcomes" is not mentioned in several locations where the LIP issue is addressed.

17. The research [12] (published alongside the Response) was, as we predicted, of limited value, but nevertheless does nothing to support the Government’s proposals and goes some way to corroborate the fears expressed by consultees about the impact of the reform proposals. It was, as the authors of the research admit "not a fully systematic review". The research revealed (it is acknowledged) "limited" good quality evidence on which the Government could base its proposals. It is conceded that there was little "robust" evidence for the research questions ( comment: while ostensibly ignoring the clear evidence from the judiciary in their response to the consultation, for example – see below ). The relevance of international comparative studies was shown (as we predicted) to be "problematic" given the different eligibility criteria, cultural differences, and legal context. In the final analysis, it shows that there are "gaps" in the Government’s "understanding" of the impact of litigants in person in the courts (described as "limited").

18. Nevertheless, what does the research tell us about Litigants in Person?

Profile of LIPs

(a) Litigants in person tended to be younger, with lower income, and educational levels than those who obtained representation;

(b) In family cases, the one study to examine the issue revealed that a significant minority of unrepresented litigants (20% of injunction cases, and 15% of children cases) had a "specific indication of vulnerability (such as being victims of violence, having depression, a problem with alcohol/drug use, having a mental illness or being extremely young parents)"; (comment: raising serious questions about their ability effectively to access the courts / justice).

Effect on the cases and on the courts

(c) Family cases where one or both parties were unrepresented tended not to settle, increasing case duration ( comment : and therefore cost);

(d) "The weight of the evidence indicated that lack of representation generally had a negative effect on case outcomes";

(e) LIPs tended to experience "a number of problems" in presenting their cases "which in turn impact on the court" – LIPs were (according to a number of sources) "overwhelmed by the procedural and oral demands of the courtroom";

(f) A number of sources noted the extra burden that unrepresented litigants create for court staff and judges.

(g) Where active unrepresented litigants were involved, cases were seen to take longer. This was particularly so for family cases, where the absence of a representative was linked to longer case duration as they were less likely to settle than cases involving a representative (Dewar et al., 2000; Hunter, 2003; Moorhead and Sefton, 2005; Rosenbloom, 2003),

Failure to pursue claims as a result of lack of advice / representation

(h) The Government concedes that there is a gap in the research, in that it did not examine the potential impact of changes to access to legal funding on

i) whether people with problems amenable to resolution in the justice system would be reluctant or unwilling to participate in the justice system if they did not have legal advice;

ii) what they do instead, and the effectiveness of the alternatives they may turn to.

19. In contrast with this literature research, it is appropriate to note what the Judge’s Council [13] said in its response to the Consultation Paper on Legal Aid. There is a highly relevant, detailed, discussion of the impact of litigants in person on the management and outcome of cases, from an informed and experienced perspective. In summary, the Council reports (§6):

One of the major concerns running through our comments is that the proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system in terms of additional costs and delays – at a time when courts are having to cope in any event with closures, budgetary cut-backs and reductions in staff numbers. The consultation paper shows an awareness of the issue but fails to recognise the depth of the problem. Even if one focuses on cost alone, there is a real question whether the cost savings arising from the proposed cut backs in the scope of civil and family legal aid would be offset by the additional costs imposed on the system by dealing with the increase in litigants in person.

20. And alongside the Judge’s Council, it is further revealing to note what the Interim Report of the Family Justice Review said (§5.55-5.57) on this topic:

" Should the proposals go ahead as set out in the Green Paper, the reduction in the scope of legal aid may result in greater numbers of people representing themselves, or litigants in person. Such people often have limited legal expertise and need greater support from the court during their proceedings, which may lead to longer cases. Litigants in person may also be disadvantaged by not knowing their entitlements .

There should be much more readily-available information for litigants in person. People should not have to fork out huge legal fees, go on benefits or be disadvantaged by a lack of information on appearing as a litigant-in-person - just so that they can put forward their case regarding the most important things in their lives i.e. their children. [Parent, call for evidence submission]

We share these concerns, both as to the ability of litigants in person to conduct their case effectively and as to the inevitable increased burden in terms of time and resources this will place on the court. We are also concerned that some parents will simply not pursue their dispute leading to some children losing contact with a parent.

We await the government’s conclusions, following the consultation and their response to these concerns. "

21. The Government’s summary of the research [14] reads as follows:

" In the consultation paper we undertook to review the research available on litigants-in-person, and their impact on the conduct and outcome of proceedings. The Government has completed its review, which it has published separately today. Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings . This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive . " [15]

The ‘mixed impact’ should not be misunderstood: this includes cases where the litigant was ‘inactive’ – that is to say, took no part in the proceedings at all .

22. Finally, it is noted that the "Government will examine the system to support litigants-in-person as part of the post-implementation review and will report the findings to Parliament" [16] . We regret that this will be a case of examining the state of the stable door, long after the horse has bolted…

Clause 1: Lord Chancellor’s functions

23. Clause 1 presently reads:

The Lord Chancellor must secure that legal aid is made available in accordance with this Part.

24. The FLBA proposes that Clause 1 should be amended to read:

The Lord Chancellor must secure that legal aid is made available in order to ensure practical and effective access to justice.

25. Under schedule 5, para.49 of the Legal Aid Bill, it is proposed that sections 1-26 (and schedules 1-3A ) of the Access to Justice Act 1999 (which deal with legal aid) are repealed. The actual effect is to substitute a narrower ‘access to justice’ provision here than previously existed. Under Section 4 of the 1999 Act , the LSC was established in order to develop the Community Legal Service:

for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part ) that individuals have access to services that effectively meet their needs .

This crucial provision has gone.

Clause 2(3): Regulations for funding

26. This clause reads:

The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part.

27. We propose that the clause should be amended to read

The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part having regard to-

a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

b) the cost to public funds, and

c) the need to secure value for money .

28. In this respect, note that the Government proposes to abolish section 25 of the Access to Justice Act 1999 .

29. This provided that

When making any remuneration order the Lord Chancellor shall have regard to-

a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

b) the cost to public funds, and

c) the need to secure value for money.

30. We submit that there ought to be a similar provision in order to emphasise the importance of ensuring that fee levels do not drop to such a level that a "sufficient number of competent persons and bodies" are no longer secured. In short, there needs to be some protection against the emergence of advice deserts.

31. We further support a provision which imposes a ‘floor’ below which such rates do not fall (such as the rates prescribed by the 2001 funding order).

32. 10% cuts in fees for family lawyers: [17] : The proposed cuts in fees will inevitably cause many solicitors firms to fold, as publicly funded work becomes wholly uneconomic; advice deserts will emerge; access to justice for the public will become harder. It is no wonder that 88% [18] of the respondents to the consultation opposed the cuts. That 88% figure is not likely, we suggest, to represent simply those whose livelihoods depend on public funding.

33. At the Bar, women and B&ME practitioners will be the hardest hit by these fee proposals [19] . Overall, the legal profession (and in due course the judiciary) will become less representative of the public it serves.

34. This is not, as has been said already, mere self-interested lawyers complaining about the cuts to its fees; this is the view of the senior Judiciary (§10: Judge’s Council response):

There is a real concern, especially in relation to family and criminal work, that the pool of skilled advocates willing to undertake the work will diminish, to the disadvantage of litigants and to the detriment of the efficient running of cases. Moreover, there are likely to be longer term adverse consequences for the recruitment of able advocates into these fields of work and, at the other end of the spectrum, for the existence of a sufficiently large and diverse pool of able advocates suitable for appointment as judges in such cases .

Clause 8: Shrinking categories of legal aid…. amend "by inclusion or" omission…

35. Clause 8(2) reads

The Lord Chancellor may by order modify Schedule 1 by omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).

36. We submit that the clause should read

The Lord Chancellor may by order modify Schedule 1 by including or omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).

37. The Bill allows only for ‘shrinkage’ of the services supported by legal aid. We do not believe that this is right. The Bill should permit the Lord Chancellor hereafter to include legally aided services not just omit them.

38. Note (small comfort) – for information – that such an ‘order’ can only be made by positive resolution (Clause 38(6)).

Clause 9: Exceptional cases [20]

39. The exclusion of important cases from the scope of legal aid is not remedied by the incorporation into the Bill of Clause 9. We contend that – having regard to the decision of Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 E.H.R.R. 305 – the lack of legal aid in the majority of private law family cases raises serious ECHR issues.

40. In Airey, the Court held that a right of access to a court for the determination of the applicant’s civil rights (recognised by Golder v UK [1975] 1EHRR 524 could be violated by lack of legal aid for legal representation in those proceedings. The fact that the litigant was free to act as a LIP not conclusive of the matter, as ECHR guarantees practical and effective, not theoretical and illusory rights [24]. In some cases, acting as a LIP would not breach article 6 rights, but "much must depend on the particular circumstances" [26].

41. So in Airey the question was whether Mrs. Airey’s theoretical ability to represent herself would be effective, i.e. whether she would be able to present her case properly and satisfactorily. [24]

42. It was noted that the fact that her husband would be represented by a lawyer would put her at a disadvantage. But even putting that aside, Mrs Airey could not effectively conduct her own case in litigation of this nature, despite the assistance that judge would afford to her as a LIP because:

(a) Of the complex procedure of High Court (comment: how would it compare by reference to the Family Procedure Rules)?

(b) Of the complex points of law;

(c) There would be requirement to prove grounds for judicial separation, possibly with expert evidence and other witnesses;

(d) "What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court"

43. When the issue was looked at again in McVicar v UK Application no. 46311/99; (2002) 35 EHRR 21 (a case concerning the lack of legal aid in defamation actions) it was held that one of the important features of the decision in Airey was that there was an inevitable emotional involvement – this was a particular feature of family cases which "regulate the legal relationship between two individuals and may have serious consequences for any children of the family" [61].

44. It is appropriate also to look at R v Legal Services Commission ex parte Jarrett [2001] EWHC Admin 389; the current exceptional funding criteria were amended following the domestic decision in Jarrett where it was held that the then criteria (overwhelming importance to client or significant public interest) failed to capture all issues pertinent to Article 6. This led to the addition of the clause that reads:

"there is convincing evidence that there are exceptional circumstances such that without public funding for representation it would be practically impossible for the client to bring or defend proceedings, or the lack of public funding would lead to obvious unfairness in the proceedings".

45. An oddity immediately arises from the prima facie exclusion of private family law from legal aid, given the apparent Strasbourg view that at least some non-DV private family cases (note: there was some history of domestic violence in Airey, but that played no part in the Court’s decision that legal aid was required for Mrs. Airey’s judicial separation petition) can be sufficiently important to require legal aid given the importance of the issues to the lives of the parties, especially the children.

46. So we contend that the exclusion of private family cases has been drawn too tightly, such that we contend that the blanket rule may well be unlawful in terms of Art 6. There is clearly room for challenge on this point, given the Government’s complete inattention to the ample evidence of lawyers’ role in settling cases, and the available evidence (summarised above) about the experience of litigants in person in family cases.

47. If the blanket rule is not itself a breach, that conclusion will have to be in part on the basis that the exceptional funding provision will be applied in such a way to ensure Art 6 compliance. What proportion of cases might be expected to require legal aid? NB the Government view that mediation is all that is needed in these cases (with supporting legal work) and the expectation that, domestic violence and child abuse-related cases remaining in scope, only a further 5% of private family cases will find their way back into legal aid via exceptional funding [impact assessment Annex A, table 3].

48. It is also relevant to consider P, C and S v UK (ECHR) 56547/00, in which it was said that while there is no automatic right under the Convention for legal aid or legal representation to be available for an applicant who is involved in proceedings which determine his or her civil rights, nonetheless, Article 6 may be engaged under two interrelated aspects:

(a) assistance is indispensable for effective access to court, either because legal representation is rendered compulsory as is the case in certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or the type of case (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16, §§ 26-28, where the applicant was unable to obtain the assistance of a lawyer in judicial separation proceedings). Factors identified as relevant in Airey in determining whether the applicant would have been able to present her case properly and satisfactorily without the assistance of a lawyer included the complexity of the procedure, the necessity to address complicated points of law or to establish facts, involving expert evidence and the examination of witnesses, and the fact that the subject matter of the marital dispute entailed an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court. In such circumstances, the Court found it unrealistic to suppose that the applicant could effectively conduct her own case, despite the assistance afforded by the judge to parties acting in person;

(b) the key principle governing the application of Article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance by a lawyer and manages to conduct his or her case in the teeth of all the difficulties, the question may nonetheless arise as to whether this procedure was fair (see, for example, McVicar v. the United Kingdom, no. 46311/99, §§ 50-51, ECHR 2002-III). There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures

49. In short, the Bill raises legitimate article 6 issues in light of Airey; we suggest that it is wrong to apply an additional hurdle of ‘exceptionality’ in order to satisfy Article 6 rights. We suggest that Clause 9 does not go far enough to ensure that there is provision for funding in appropriate cases. The proposed scheme for funding exceptional (excluded) cases where it is shown to be necessary in order for the United Kingdom to meet its legal obligations is unduly narrow and would not be sufficient to counter the adverse effects of litigants being forced to pursue litigation in person, in areas of civil and family law where legal representation is important for the proper conduct of the case (see on this issue §9 of the response of the Judge’s Council to the Consultation Paper).

50. We are far from confident, without more information, how the Director will exercise discretion in the individual case; this may become clearer when the Guidance is published. However, it seems extremely unlikely that this discretion will be invoked in the many cases in which we consider the vulnerable will encounter difficulties in accessing justice.

Clause 45: Financial remedies: the unrepresented litigant

51. CLAUSE 45: Orders for payment in financial remedies consequent on divorce. We propose that this provision should be extended to schedule 1 claims and ToLATA claims.

52. However, we contend that the application for such an order should be included in ‘scope’ in Schedule 1.

53. The Government has rejected calls to include provision for applicants for legal services provision to obtain legal advice and representation in making that application (unless she/he falls into the ‘domestic violence‘ category (see below)). The proposed payer is likely to oppose such an application on the basis that there are insufficient matrimonial assets to make such a distribution; accordingly, the application for the order may involve a detailed study of bank accounts and company accounts to establish whether money can be released for an interim lump sum; this is expert work. This is no task for a wife struggling to cope with the ordeal of relationship breakdown, coping with the new demands of child-care as a single parent, having to take on the role of forensic sleuth.

54. Consequently, an application for such interim lump sum provision should remain in scope if the power is to be an effective tool in reducing the time and money expended in family court on litigating financial issues. If such an application is conducted professionally, it is far more likely to be successful in establishing the ability of the Respondent to make the lump sum payment that would fund the litigation, and consequently enable both sides to be properly privately funded.

Schedule 1, Para. 8: Unlawful removal from the United Kingdom

55. Para.8 of Schedule 1 leaves in scope legal aid for the applicant, where that individual is "seeking to prevent the unlawful removal of a related child from the United Kingdom".

56. There is no reference in Schedule 1 of the Bill to civil legal services being provided in relation to abduction of children within the United Kingdom. This is a much greater problem, in terms of numbers, to the problem of unlawful removal from the United Kingdom (which remain in scope by virtue of paragraph 8 of Schedule 1). Where a parent, who thinks they have agreed a pattern with contact with their former partner, hands over the child only to find that the child is not returned, but taken to a secret address, perhaps in another part of the country, are they to be expected to apply for an order without legal assistance in these circumstances? How are they to trace the whereabouts of the child, and serve court process on the former partner? Are they to do this as a litigant in person?

57. The FLBA proposes two amendments:

(a) that the ambit of this provision should be expanded to include threatened domestic child abduction i.e. the "summary removal of a child from its main home, whether that should be to a destination within or outside the United Kingdom". The effect on the child (and of the main carer) of a summary removal of the child is essentially the same whether the destination is in the UK or abroad.

(b) That the respondent should also be entitled to legal aid. What if the application is applied for as a means of harassment? These orders are often obtained in the first instance ‘without notice’ to the respondent; the respondent has to appear to an order already made.

Schedule 1, Para.9: Family homes and domestic violence

58. We consider that it ought to be made clearer on the face of the paragraph that legal aid is available for both the applicant and the respondent.

Schedule 1, Para 10: Victims of domestic violence and family matters

59. Much of the relevant argument will fall for discussion in relation to the regulations; though it is necessary to raise the arguments now. There is much to debate in this area.

60. Specifically, in the definition section ( para.10(9) ), we would want to probe why the ACPO definition for domestic violence has not been used:

any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’ (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)

61. In any event, we would want to see the inclusion of "economic abuse" in the definition section too.

62. In domestic violence cases, the Government proposes to widen the definition of domestic abuse to capture more victims. However, it is predicted that over 40% of victims of domestic violence who currently receive legal aid will still fail to obtain legal aid under the revised proposals.

63. It is estimated that over 40% of those who receive legal aid today to pursue domestic violence injunctions would no longer be eligible under the Government’s new proposals, of whom half are at risk of serious harm (psychological and physical). The true number of people who need injunctions from the family courts is likely to be many times the number who actually receive them today owing to the difficulties which many victims experience in making disclosures [1] .  Even if the Government simply ensured that high risk victims had access to legal aid (let alone the wider group of DV victims) the figure could be more than double the current number of injunctions (i.e. of the estimated 100,000 high risk victims we could assume that currently a third to a half would access MARAC, and thus be eligible).

64. The Government has properly conceded that its previous definition of domestic violence needed to be revised and widened, yet the definitions still do not go far enough. There is no specific reference (as had been urged on the Government) to the ACPO [2] definition of domestic violence, to the victims of psychological abuse ( Yemshaw [3] ), nor to those women who seek the assistance of women’s refuges. The new criteria are:

(a) There are ongoing criminal proceedings for domestic violence offence by the other party towards the applicant for funding;

(b) The victim has been referred to a Multi-Agency Risk Assessment Conference (as a high risk victim of domestic violence) and a plan has been put in place to protect them from violence by the other party; and

(c) There has been a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm.

65. As to (a), the data provided by the Government is not clear as to the %age of additional victims of domestic violence which would be captured by this further category being brought within ‘scope’. Given that the criminal process is likely (through bail conditions, and through restraining orders) to regulate contact between alleged victim and alleged offender, this is an important gap in the relevant information.

66. As to (b), in a review of a sample of data undertaken by CAADA [4] (following the publication of the Bill) [5] , it appeared that (in a sample of 1000 cases) of 147 victims who qualified for legal aid 43% did not meet the MARAC threshold and would therefore potentially no longer qualify for legal aid. Within this group of 63 cases, almost half (48%) were described as high risk i.e. were experiencing 14 or more of the risk factors identified on the CAADA risk identification checklist [6] , 56% experienced physical abuse, 21% sexual abuse, 59% jealous and controlling behaviour (i.e. emotional abuse) and 67% stalking and/or harassment.  They were more likely to come from B&ME communities (17% vs 14% for the average) and almost a quarter (24%) had mental health issues.

67. As to (c), this contemplates that the victim of domestic abuse has already been through the ordeal of a court process, possibly unrepresented, in which she/he has had to face the perpetrator of abuse, in a contested trial (hence ‘findings of fact’) before being eligible for legal aid.

68. Generally, it should be noted that it is not at all clear how the Government has calculated the percentages of cases that it expects to remain in the system.

69. Given the high number of domestic violence incidents which go unreported, we consider that there should be consideration given to further routes for legal aid from those proposed including:

(a) admission to a Women’s Refuge;

(b) accessing Domestic Violence Services

(c) accessing medical professional services (general practitioner / health visitor);

(d) the Mediation assessment concludes that because of domestic abuse, the couple are not required to mediate;

and add a catch-all

(e) any other category of case in which the Director of Legal Aid Casework is satisfied that it would be right to make available legal aid.

70. The FLBA does not consider that the 12-month time limit (the qualifying period of the protective relief) referred to in the White Paper is appropriate [7] . Domestic violence is ingrained behaviour.

71. Domestic violence, and protection from harassment: the respondents (the alleged perpetrators)? The Government has not made any revisions to its proposals for providing legal aid in family cases for the perpetrator of domestic violence or in protection from harassment cases. It should do so.

72. There are serious inequality of arms issues created by the lack of representation for the alleged perpetrator against the represented complainant. In cases of this kind, issues around third-party disclosure often arise requiring expertise which an unrepresented respondent is unlikely to have, and the corresponding greater risk of a miscarriage of justice. The stress of the process for the victim will be significantly heightened by being confronted directly in court by the unrepresented abuser. The legal process contemplated by these proposals will position the victim facing direct questioning by the unrepresented abuser. Far from protecting the victim from the abuse, this will only serve to perpetuate (and increase) the experience of abuse. It will not be for the Judge to mitigate this.

73. The Government should be very concerned that these provisions may deter vulnerable victims from pursuing court protection if they know that they will have to face direct cross-examination from the person who has abused them .

Schedule 1, para 11: Protection of children and family matters

74. Child protection cases: Unrepresented parties to appear in significant numbers of child harm cases: children left unprotected: While the Government has introduced proposals for legal aid in some cases involving child ‘abuse’ (as defined in the paragraph) (where there is objective evidence of the risk of abuse), its proposals are not likely to cover the "significant" number of private law cases where " serious child protection concerns are raised " (per the Interim Report of the Family Justice Review (30th March 2011)).

75. We make four proposals for change.

76. (1) Respondent to the allegations… It is proposed that Legal aid will only be available under this clause for Adult ‘A’ (the protecting adult). The FLBA contends that legal aid should also be available for the "individual other than A" who is said to be placing the child at risk of abuse. It is vital (in order to comply with Article 6 obligations) that the respondent to allegations of child abuse should be represented.

77. (2) Schedule 1 / ToLATA: The FLBA contends that the categories of case in Schedule 1 para 11 should include financial remedy cases, Schedule 1 CA 1989 cases, and ToLATA cases.

78. (3) Expansion of the criteria: section 37: The Government’s criteria, (see the Government’s Response CM872) suggests the following:

(a) there are ongoing criminal proceedings for a child abuse offence against the person from whom the protective party is seeking to protect the child; or

(b) a local authority has put a Child Protection Plan in place to protect the child who is the subject of the proceedings from abuse by or including abuse by the person from whom the protective party is seeking to protect the child; or

(c) there is a relevant finding of fact by the courts that child abuse on the part of the person from whom the protective party is seeking to protect the child has occurred.

79. As to (a), while this may capture additional serious cases, there is no assessment of how many and in what circumstances.

80. As to (b) the concession does not go far enough. As the FJR indicates, there will be many cases which:

"involve substance abuse and violence, which present real safety issues. A judge at the Principal Registry of the Family Division (PRFD) undertook for us a three-day snapshot of cases. Many were straightforward, and the court was focused on seeking to support the parties in coming to an agreement. But there were also many that showed high levels of risk " [8]

81. There will be many private law cases (such as intractable contact disputes) which would not readily attract local authority attention, but which nonetheless require representation if they are not to spiral out of management control in court.

82. As to (c), this contemplates that the parties have already been through the ordeal of a court process, possibly unrepresented, in which she/he has had to face the perpetrator of abuse to the child, in a contested trial (hence ‘findings of fact’) before being eligible for legal aid.

83. The FLBA would like to suggest that parties to family proceedings would automatically fall within scope if the court makes a section 37 order under the Children Act 1989 – viz:

Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances

84. At the very least, this should trigger an application to the DLAC for consideration of making legal aid available.

85. (4) Witnessing domestic abuse : Given that section 31(2)/(9) of the CA 1989 contemplates that children who witness domestic abuse can be said to have suffered significant harm, then this also ought to represent a passport for all parties to be represented

(section 31(9)) " harm " means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another

86. Moreover, it is not understood why this provision is limited to the provision of legal aid in proceedings relating to the children , and not the associated financial remedy proceedings? The child’s economic welfare is important in abuse cases, particularly given the incidence of abuse in low-income households.

Schedule 1: Para . 12: mediation

87. Mediation: needs to be supported by legal advice and representation to be effective : The Government’s own research [9] conducted alongside the preparation of its Bill and Response reveal that parties experienced "problems" in mediation if they did not have the benefit of legal representation; the research is said to demonstrate (unsurprisingly in our view) that:

…parties in mixed representation cases (where one party was represented and the other was not) were more likely, than cases where both or neither parties were represented, to report feeling unprepared to mediate, and concerns and fears about mediation

88. The Government continues to place excessive reliance on the likely impact of mediation on diverting cases away from the family court system. In its Response to the Legal Aid consultation, the Government maintains that it has considered (private law) family court diversion proposals, and relies on the fact that the Family Justice Review interim report outlined the benefits of mediation in supporting parties to resolve their disputes. The need to make savings in the legal aid budget takes these initiatives into account. It should be noted however that the Family Justice review recognizes that mediation is not a panacea, and that there should not be over-emphasis on the prospects of mediation; they say explicitly:

"Where possible disputes should be resolved independently or using Dispute Resolution Services such as mediation, when it is safe to do so. Parents who choose to use the court system must understand it will not be a panacea" [10] . (emphasis added)

89. We are conscious that many mediators are not satisfied with these proposals, and would refer to the article in Family Law Journal from Mike Stepan (NFM Mediator (MiD Mediation and Counselling), in which he refers to mediation being seen as a "political cheap deal". He also refers to the fact that mediation ‘depends’ in a number of ways on the clients having access to legal advice. It is perverse that lawyers will be paid only if there is parallel mediation, but not if there is no mediation.

Schedule 1, para.13: Children who are parties to family proceedings

90. The FLBA contends that legal aid should be available for all parties in which an order under Rule 16.2 is made, where the child is to participate in proceedings without a guardian under rule 16.6 or where the child is to be the applicant or respondent to the application

91. These cases are by definition extremely complex and sensitive (in accordance with the Airey criteria); they include cases [11] :

§ Where there are serious allegations of physical, sexual or other abuse in relation to the child;

§ Where there are complex medical or mental health issues to be determined or there are other unusually complex issues;

§ Where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute (see above);

§ Where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;

§ Where there is a contested issue about blood testing.

92. These cases are invariably not suitable for mediation.

93. The Courts will therefore have unrepresented litigants before them:

(a) Being required to marshal the relevant evidence in a case concerning physical or sexual abuse of a child, where there may be, for example, concurrent police involvement / investigations;

(b) Having to deal with (and cross-examine on) expert evidence relevant to serious allegations of physical or sexual harm of a child,

(c) Having to consider and deal with expert evidence relevant to the court practice of a foreign jurisdiction;

(d) With "mental health issues", who will be expected to represent themselves even though the "significant difficulty" envisaged in the case is precisely the fact that the parent has such a condition.

Annexe A

94. According to research commissioned by the Home Office in 2004 [12] , the following was recorded in relation to non-reported domestic abuse:

Seeking help

· Thirty-one per cent of female victims and 63 per cent of male victims had not told anyone other than the survey about the worst incident of domestic violence that they had suffered during the last year.

· Forty per cent of women told no one about their worst experience of rape suffered since the age of 16.

· Twenty-five per cent of those women that were raped in their worst incident (since age 16) and classified it as such, told no one about this incident.

· Among victims of stalking last year, nine per cent of women and 17 per cent of men had told no one.

· In less than one in four (23% women; 8% men) of the worst cases of domestic violence in the last year did the police come to know.

· In cases of sexual assault the police came to know in less than one in seven of the worst cases (15% completed rape; 12% any serious sexual assault; 13% less serious sexual assault).

· Stalking was the most likely to be reported of these forms of inter- personal violence, but even for this, in only one in three (31% women last year; 30% men) cases did the police come to know.

Asked why they did not report the worst incident of domestic violence in the last year, 41 per cent of women and 68 per cent of men replied they thought that it was too trivial, 38 per cent of women and 39 per cent of men that it was a private family matter, seven per cent of women and five per cent of men that they did not want any more humiliation, and 13 per cent of women, but no discernible percentage of men, that they feared more violence or that the situation would get worse as a result of police involvement.

95. The same research provides the following shocking figures:

"There were an estimated 12.9 million incidents of domestic violence acts (nonsexual threats or force) against women and 2.5 million against men in England and Wales in the year prior to interview."

96. Only a fraction are ever reported. It has long been known that a high proportion of abuse goes unreported. According to the domestic violence statistics, the police receive over 570,000 calls each year in relation to domestic violence [13] . Furthermore, only a minority of domestically abusive incidents are reported to the police: between 23% [14] and 35% [15] .

97. Women’s Aid report the following:

"During 2006-7, the National Helpline answered an average of 387 calls per day: 500 a day on weekdays, 250 on Saturdays and 200 on Sundays.

The Freephone 24-Hour National Domestic Violence Helpline (run in partnership between Women’s Aid and Refuge) received just over a quarter of million calls during its first 12 months." [16]

98. According to the Ministry of Justice court statistics [17] published from 2008, the number of applications for non molestation and occupation order injunctions issued in the County Court between 2004 and 2008 was as follows:

Year

Total Applications

2004

27,813

2005

27,374

2006

26,269

2007

24,222

2008

24,879

99. Although domestic abuse can occur in any domestic environment irrespective of class, sexuality or ethnicity it is wrong to assume that the problem is evenly distributed. It is already obvious from the statistics quoted above that a far greater proportion of women fall victim to domestic violence than men, but crucially, those women on a low income are at a significantly greater risk of abuse than their more affluent contemporise.

"During the last year women in households with an income of less than £10,000 were three and a half times more likely to suffer domestic violence than those living in households with an income of over £20,000, while men were one and a half times more likely. The nature of the links between poverty and risk of interpersonal violence is unclear. It may be that poverty is associated with the onset of domestic violence, or it may be that in fleeing domestic violence women are reduced to poverty." [18]

100. Therefore, those that are most likely to be affected by the Green Paper proposals (and left unrepresented in court) will be women on a low income who have been abused and bullied by the very partners against whom they will have to appear in court.

July 2011


[1] It is feared unlikely that the Director could assess a family case exceptionally to be caught under Clause 9 i.e. where the absence of legal aid in a given case would be a breach (or there would be a risk of a breach) of the individual’s convention rights under the HRA 1998; will depend on evaluation of Airey principles. The possibility for the Director to exercise discretion in this way is discussed at §47 of the Government’s Response CM8702, page 20

[2] See for example para.619 of the Explanatory Notes, in which it is said that funding entitlement under clause 10 and 11 to schedule 1 of the Bill, for example, will be made by regulation and will be “limited to cases where there is appropriately clear evidence of the need for protection”.

[3] Page 20, §46: The Government Response: CM8072

[4] Family Justice Review Interim Report, §2.47

[5] Family Justice Review Interim Repo rt §3.88

[6] Family Justice Review Interim Report, §5.61

[7] Family Justice Review Interim Report §74 (p.15)

[8] Family Justice Review Interim Report §5.125

[9] Annexe B, para.2: The Government Response: CM8072

[10] Annex B, para.3: The Government Response: CM8072

[11] The Government Response: CM8702 , §45 page 20

[12] http://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/litigants-in-person-literature-review.pdf

[13] http://www.judiciary.gov.uk/Resources/JCO/Documents/Consultations/response-judges-council-legal-aid-reform-consultation.pdf

[13]

[14] The Government Response §138, page 40

[15] Note that the ‘poorer outcomes’ finding was NOT mentioned in this section of the Response paper.

[16] The Government Response Chapter 4, §16, page 115

[17] Government’s Response to Consultation: CM8702, Chapter 4, page 84, §11

[18] Annex H of the Government’s response to the Consultation §4, page 227

[19] Kings College Survey: 2008: This is a quantitative study of the work of the family bar in 2008, and the current functioning of the legal aid graduated fee system for barristers in family law cases. The study was commissioned in June 2008 by the Family Law Bar Association (FLBA), and was undertaken by researchers in the King’s Institute for the Study of Public Policy (KISPP) at King’s College London, from July 2008 to December 2008. Data was gathered through surveys of (i) chambers where any family work is undertaken, (ii) barristers who undertook any family work (whether publicly funded or privately paid) in the year to 30 August 2008 and (iii) all family work completed by barristers in England and Wales in a random week, known as the ‘Week-At-A-Glance’

[20] With particular thanks to Jo Miles, University Lecturer, Director of Studies and Fellow in Law, Trinity College, Cambridge, f or her assistance on this narrative on clause 9.

[20]

[1] See Annexe A attached.

[2] Guidance on Investigating domestic abuse: ACPO (2008)

[3] Yemshaw v London Borough of Hounslow [2011] UKSC 3

[4] Co-ordinated Action Against Domestic Abuse (CAADA) is a national charity supporting a strong multi-agency response to domestic abuse. Its work focuses on saving lives and saving public money. F or more information on this issue go to http://www.caada.org.uk/Research/Insights.htm .  

[5] This is relying on a number of domestic violence services whose data is collected and analysed by CAADA.  The data comes from a range of practitioners – Independent Domestic Violence Advisors who work with the highest risk victims of abuse, outreach workers who support victims of less severe abuse, refuge staff and some children’s workers.   http://www.caada.org.uk/Research/Insights.htm

[6] http://www.caada.org.uk/practitioner_resources/riskresources.htm

[7] Para.25 on page 16 of the Government’s response

[8] Family Justice Review, Interim Report, §5.46

[9] Research Summary 2/11: Litigants in Person: a literature review (Kim Williams: MoJ)

[10] Family Justice Review Interim Report, §5.60 page 155

[11] See President’s Practice Direction: Representation of Children in Family Proceedings (2004) reported at [2004] 1 FLR 1188

[11]

[12] http://rds.homeoffice.gov.uk/rds/pdfs04/hors276.pdf

[13] Stanko (2000)

[14] Walby and Allen, 2004

[15] Home Office, British Crime Survey 2002

[16] www.womensaid.org.uk

[17] http://www.justice.gov.uk/about/docs/judicial-court-statistics-2008-05-chapt5.pdf

[18] http://rds.homeoffice.gov.uk/rds/pdfs04/hors276.pdf

Prepared 18th July 2011