4 The domestic violence gateway
63. While family law in general was removed from
scope, prospective litigants who can provide evidence of domestic
violence can still be granted legal aid. The exception was introduced
because of a concern that victims of domestic violence might be
vulnerable to intimidation, and disadvantaged in legal proceedings,
if they were forced to represent themselves against the perpetrator
of the violence.[94]
Both the definition of domestic violence and the evidence required
for a grant were the subject of debate throughout the passage
of the Bill. In its submission the MoJ summarised the types of
evidence needed as follows:
i. a conviction, police caution, or ongoing criminal
proceedings for a domestic violence offence;
ii. a protective injunction;
iii. an undertaking given in court (where no
equivalent undertaking was given by the applicant);
iv. a letter from the Chair of a Multi-Agency
Risk Assessment Conference (MARAC);
v. a finding of fact in court of domestic violence;
vi. a letter from a defined health professional
(which included a doctor, nurse health visitor or midwife);
vii. evidence from social services of domestic
violence; and
viii. evidence from a domestic violence support
organisation of a stay in a refuge.[95]
64. Evidence, except for convictions, is subject
to a 2 year time limit.[96]
Convictions do not constitute evidence for the domestic violence
exemption if they are spent. The system was reviewed in early
2013 and new regulations were brought into force in April 2014
which extended the types of evidence accepted to include:
i. police bail for a domestic violence offence;
ii. a bindover for a domestic violence offence;
iii. Domestic Violence Protection Notice/ Domestic
Violence Protection Order;
iv. evidence of someone being turned away from
a refuge because of a lack of available accommodation;
v. medical evidence expanded to include evidence
from practitioner psychologists; and
vi. evidence of a referral to a domestic violence
support service by a health professional.[97]
Legal aid is also available for proceedings which
provide protection from domestic violence, such as protective
injunctions, without the need to provide evidence of domestic
violence.
65. Rights of Women, a charity specialising in advice
on family law and which campaigns on women's rights, has been
monitoring the operation of the domestic violence gateways since
their introduction in April 2013.[98]
Emma Scott, Director of Rights of Women, welcomed the additions
to the types of evidence accepted as indicative of domestic violence
but said they did not go far enough:
Since 1 April 2014…there has been a slight
increase in the number of women who have been able to successfully
apply for family law legal aid using those new forms of evidence.
The survey, as of yesterday, showed that 39% of women [who were
victims of domestic violence] still had none of the forms of evidence,
which is a slight reduction from the 43% in our previous research,
which looked at the year from April 2013.[99]
66. Clare Laxton, Public Policy Officer of Women's
Aid, told us some of the most common forms of domestic abuse are
particularly difficult to evidence: "in a survey that we
did last year of over 1,000 survivors of domestic violence, 80%
of them experienced emotional and psychological abuse and over
50% experienced financial abuse. It is those sorts of abuses …that
are very difficult to evidence."[100]
We heard from Nicola Jones-King, Co Chair of the Association of
Lawyers for Children, that it could be a "huge challenge"
to obtain evidence in cases of abuse.[101]
Ms Jones-King agreed with Dave Emmerson, of Resolution, when he
told us that one of the two changes he would like to see to ensure
access to justice for vulnerable individuals was "a catch-all
clause, where representations can be made where it is evident
that someone is suffering from domestic abuse but it is not evidenced
in the existing gateway requirements." The President of the
Law Society, Andrew Caplan, said the failure to resolve the difficulties
around accessing legal aid for victims of domestic violence was
an example of the Ministry of Justice failing to achieve its objective
of focusing legal aid on the most serious cases and the most vulnerable
individuals.[102]
67. A legal challenge to Regulation 33 of the Civil
Legal Aid (Procedure) Regulations 2012, which sets out the evidence
required to access the domestic violence gateway, recently failed,[103]
although media reports suggest this decision is likely to be appealed.[104]
The MoJ told us that it was committed to keeping the type of evidence
required to qualify for the domestic violence exemption under
review. We note with concern the evidence from the Rights of
Women survey suggesting 39% of women who were victims of domestic
violence had none of the forms of evidence required to qualify
for legal aid. Any failure to ensure that victims of domestic
violence can access legal aid means the Government is not achieving
its declared objectives.
68. We welcome the Ministry of Justice's commitment
to keeping the types of evidence required to qualify for the domestic
violence gateway under review and recommend the introduction of
an additional 'catch-all' clause giving the Legal Aid Agency discretion
to grant legal aid to a victim of domestic violence who does not
fit within the current criteria. We also wish to see regular
publication of figures on grants of legal aid made on the grounds
of domestic violence.
69. We also heard concerns that the 24 month time
limit on all evidence of domestic violence, other than convictions,
presented problems for victims, as a court case could arise a
considerable time after the breakdown of a relationship.[105]
As was noted by the court in R(Rights of Women) v Lord Chancellor,
the "[t]he policy intention [of the domestic violence gateway]
is to provide legal aid where an individual will be materially
disadvantaged by facing their abuser in court, not simply to provide
open-ended access to legal aid for domestic violence. The time
limit provides a test of the on-going relevance of the abuse."[106]
We note that this case is likely to be the subject of an appeal.[107]
Our witnesses gave us a number of examples where the 24 month
time limit presented problems, Philippa Newis, of Gingerbread,
described a case where:
…a single parent had experienced domestic
violence in the past, her partner had not been on the scene for
a number of years and then came back and wanted to go to court
around a contact order, but she could not access legal aid through
the domestic violence gateway because her domestic violence experience
had been over two years.[108]
Jenny Beck, Co-Chair of the Legal Aid Practitioners
Association, described a case where the victim had suffered a
severed finger as a result of domestic violence and highlighted
the child safety concerns arising in such cases. The perpetrator
of the violence had been in prison for over two years for an unrelated
offence and was now seeking contact with his children: "the
violence against her was too old for it to count in respect of
gateway evidence…That woman was clearly extremely vulnerable
again, and of course there were extremely important issues of
child contact with a very violent man."[109]
70. We recommend Regulation 33 of the Civil
Legal Aid (Procedure) Regulations 2012 be amended to give the
Legal Aid Agency discretion to allow evidence of domestic violence
from more than 24 months prior to the date of the application
in cases where the person who has suffered the violence would
be materially disadvantaged by having to face the perpetrator
of the violence in court. We make this recommendation in recognition
of the potential artificiality of the 24 month time limit given
the ongoing nature of familial relations that can be the subject
of court proceedings and the lasting impact domestic abuse can
have on victims.
71. Lack of knowledge of the domestic violence gateway
among healthcare professionals in particular, was noted as a weakness
of the scheme. Emma Scott told us "The Ministry of Justice
has some very useful guidance on its website and some very useful
precedent letters that can be used" however "there is
perhaps an issue around making sure that it is disseminated effectively
among the kind of professionals that are going to be asked for
this evidence…the front-line health professionals and social
care professionals."[110]
Ms Laxton noted some recent National Institute for Health and
Clinical Excellence guidance had recommended improvements in domestic
violence training and knowledge for healthcare staff,[111]
while Ms Scott had told us the impact of poor knowledge was seen
when some victims of domestic violence had met with a refusal
or given a letter which did not qualify as evidence because "the
wording was not quite right".[112]
Philippa Newis, of Gingerbread, expressed concern that a requirement
to pay for some of the forms of evidence was a barrier to the
gateway for those on low incomes.[113]
72. We were pleased to hear from witnesses that
the Ministry of Justice has published helpful advice to healthcare
professionals on their role in providing victims of domestic violence
with the evidence required to access legal aid. We recommend
the Ministry of Justice consider further engagement with the representative
bodies for healthcare professionals so that all relevant parties
are aware of their role in the domestic violence legal aid gateway.
We also recommend that the Ministry of Justice take measures to
ensure that victims of domestic violence are not expected to pay
for the production of the required documentary evidence.
94 R (Rights of Women) v Lord Chancellor [2014]
EWHC 35 (Admin) Back
95
Ministry of Justice (LAS0073) Back
96
Civil Legal Aid (Procedure) Regulations 2012 Back
97
Ministry of Justice (LAS0073) Back
98
One Year On, Rights of Women. Back
99
Q 105 Back
100
Q 106 Back
101
Q 65 Back
102
Q 30 Back
103
R (Rights of Women) v Lord Chancellor [2014] EWHC 35 (Admin) Back
104
http://www.theguardian.com/law/2015/jan/23/high-court-legal-aid-domestic-violence Back
105
Q 106 Back
106
[2014] EWHC 35 (Admin) Para 60 Back
107
See footnote 48. Back
108
Q 109 Back
109
Q 28 Back
110
Q 107 Back
111
Ibid. Back
112
Ibid. Back
113
Q 106 Back
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