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Survivors of domestic abuse need legal aid more than new law

Date:30 SEP 2014
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Healthcare Law Associate
Anyone following family law news recently may have spotted a connection lost on some of our law-makers. In August, the Home Office launched Strengthening the Law on Domestic Abuse – A Consultation, which posed the following questions:

  • Does the current law adequately provide sufficient protection to victims of domestic abuse?
  • In what ways could the law be strengthened?
  • How would any changes you suggest be practically implemented?
  • Does the current law sufficiently capture the Government’s non-statutory definition of domestic abuse?
The consultation focuses on the merits of creating of a discreet criminal offence of domestic abuse. It is, however, silent as to whether the law is in equal, or even greater, need of ‘strengthening’ within the civil jurisdiction. The consultation acknowledges that ‘changing the law can only ever be one limb of our overarching strategy to end domestic abuse’. If these ‘limbs’ are to be co-ordinated effectively, the role of the family courts should also be considered.

A particularly crucial oversight is evident in the multiple (seven) references in the document to the Government’s ‘non-statutory’ definition of domestic abuse. Family law practitioners will be aware that the Government has in fact created such a statutory definition of domestic abuse. It is set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is arguable that, had this definition been given full effect in practice, we may have been be a significant step closer to an ‘overarching strategy’. 

Schedule 1, para 12 of LASPO defines domestic violence as:

'any incident or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.'
The purpose of this definition is to set out the scope of those who should qualify for private law family legal aid as ‘victims of domestic violence;’ ie the remit of the so-called ‘domestic violence gateway'. The problem, however, is that the good done by the 2012 Act in linking the statutory and non-statutory definitions of domestic abuse has apparently been curtailed in subsequent regulations.

On 19 September, Rights of Women were successful in their application for permission to judicially review regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, made under s 12 of LASPO. Section 12 gives the Secretary of State for Justice power to make regulations dealing with, inter alia, the form and content of applications for legal aid. Regulation 33 has, however, provided a mandatory and exhaustive list of the types of evidence that must accompany an application for legal aid from anyone seeking legal representation as a ‘victim’ of domestic violence. As practitioners will know, these evidential requirements have effectively created a 24-month limitation period, and made it almost impossible to obtain legal aid as a survivor of the emotional, psychological or financial abuse, despite falling within the statutory definition of ‘controlling and coercive behaviour’.  

Mr Justice Burnett was persuaded that there is at least an ‘arguable’ case that regulation 33 is ultra vires LASPO. It is hoped that a substantive hearing of Rights of Women’s case will be heard before Christmas.

As for the rest, there is perhaps an equally arguable case that the Family Law Act 1996 could benefit from revision. The tool with which domestic abuse is most frequently redressed in the family courts is of course the non-molestation order. One does wonder whether its standard prohibition against ‘intimidating, harassing and pestering’ the applicant really equips the police to intervene amidst the intricate power-play of ‘controlling and coercive behaviour’? Is ‘pestering’ really at the heart of domestic abuse? If the Government is seriously considering criminalising domestic abuse, there is a powerful argument for concomitant reconsideration of the corollary civil remedy.

Ultimately, however, no matter what tweaks are made to the statutory schemes – civil or criminal – the point is academic unless those caught up in abusive relationships have practical means of escaping them. Only when survivors are assured the effective access to the courts required by Art 6 of the ECHR can a coherent strategy against domestic abuse really be said to be in place.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.