Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Justice Contents

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 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   IbidBack

113   Q 106 Back

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Prepared 12 March 2015