Gateways and Gatekeepers

By 20 March 2013News

Here at CFLP we are all members of Resolution, the family lawyers’ organisation committed to improving the way family law is practiced in England and Wales. Resolution also runs campaigns and lobbies Parliament on issues which affect families or family law. We wanted to bring your attention to one of their current campaigns about legal aid and domestic violence after the coming-into-force of the Legal Aid, Sentencing and Punishment of Offenders Act in April 2013.

As many of you will know, the Government is eradicating legal aid for most private family law cases with effect from next month. It will still be available in certain cases for victims of domestic violence, if they are able to meet specific criteria as set out in the legislation. These criteria have become known as the “domestic violence gateway criteria”. There has been concern expressed within the profession, and outside it by many organisations and charities, that these criteria are far too narrow and will prevent many victims from receiving the funding they need to obtain legal advice and representation.

Legal aid is particularly important for victims of domestic abuse as the alternative would be likely to leave vulnerable people unrepresented in court as litigants in person. This might place a victim in the unimaginable position of having to cross-examine the perpetrator themselves in order to achieve an order freeing them financially from the other person, or an order about the care of the children. (There might even be an argument that for a state to leave a victim of domestic abuse in this position might breach the European Convention of Human Rights’ guarantee of a fair trial, under Article 6.)

The evidence required to support an application for legal aid by victims of domestic violence must include one or more of the following:

  • proof of the perpetrator having an unspent conviction for domestic violence;
  • proof of a police caution for a domestic violence offence within the last 24 months;
  • evidence of ongoing relevant criminal proceedings for domestic violence;
  • an injunction (non-molestation or occupation order) in force or granted within the last 24 months or an undertaking given in place of an injunction (provided the applicant did not also give an undertaking – and legal aid will thankfully remain available for domestic violence proceedings);
  • a letter from the chair of a multi-agency risk assessment conference confirming that the applicant is at high risk of suffering domestic violence and that there is a plan to protect the applicant from harm by the perpetrator ;
  • a court finding of domestic violence within the last 24 months;
  • written confirmation from a health professional confirming they have examined the applicant within the last 24 months and found injuries or a condition consistent with them being a victim of domestic violence;
  • written confirmation from social services that they have assessed the victim as being at risk of domestic violence; or
  • written confirmation from a domestic violence support organisation confirming the victim was admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of domestic violence.

As family lawyers who deal with these issues regularly, we are extremely concerned about the ability of victims to be able to produce the necessary evidence for an application for legal aid. The current focus of Resolution’s campaign is on the practicalities of victims trying to obtain evidence to support an application, and how the legal work to obtain the evidence will be funded.

Research carried out at the end of 2011 by Rights of Women and Welsh Women’s Aid showed that almost half of domestic violence victims will not have any of the evidence that is required of them and will therefore not be eligible for legal aid to resolve their family law dispute. If a victim has fled the home to escape violence, finding the appropriate paperwork as he/she left was probably not a priority, and going back to retrieve it may not be possible. The concern that we and Resolution have is that if there is no access to legal aid, the victim may feel she/he has no choice but to return to a potentially dangerous situation, possibly with children.  Although funding for family mediation will remain, mediation is not suitable for cases where there are significant power imbalances, such as where there has been domestic abuse.

Resolution has been working closely with organisations such as Legal Aid Practitioners Group, Gingerbread and Rights of Women to raise objections to the regulations presently before parliament which are intended to implement the legislation, and has had meetings with several politicians. The organisation is gathering together examples of practical scenarios showing how victims of violence, through no fault of their own, may fail to have access to sufficient paperwork to make a successful application for legal aid, thus potentially leaving victims without access to legal advice, and potentially without any remedy for their problems. These practical examples will then be put before Parliament to ask them to consider a rethink about the practical restrictions to meeting the gateway criteria, and raise the issue of alternative means to accessing legal aid for victims of domestic violence.

We fully support Resolution’s initiative on this matter, and whilst we do not offer legal aid at CFLP, we support our colleagues in other practices who do. We all have grave concerns about the harm which may be done to vulnerable people who need help to escape abusive relationships through the cuts to legal aid and the effect of these difficult gateway criteria for accessing legal aid on account of domestic violence.

If you have any concerns about domestic abuse, you can download our factsheet here or do give Adam, Gail, Simon or Sue a call on 01223 443333 and we’ll do our best to help.

 

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