Proof magazine: A cut too far
The 2013 legal aid cuts left victims of domestic violence stranded in abusive relationships and need to be reformed. Estelle du Boulay, director of Rights of Women, explains why
The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed legal aid from private family law cases with one exception – domestic violence. Or so it seemed.
Under regulations, to qualify for legal aid a victim of domestic violence would have had to submit evidence from a prescribed list only and from a period of just two years before the application. At Rights of Women, we have estimated that four out of 10 female survivors of domestic violence have been unable to meet the evidence requirements. As a result many have been forced to represent themselves in court.
Women, who make up the overwhelming majority of those facing domestic violence, have borne the brunt of this cruel cut. The stark reality is that without legal representation, many find them- selves trapped in dangerous situations that often escalate.
In February, the government announced reforms to the so called ‘domestic violence legal aid gate- way’ that will widen the evidence requirements and abolish the two-year time limit. The proposals came around the same time that the prime minister Theresa May announced her plans to introduce new legislation to tackle domestic abuse. Whilst these changes signal recognition of the failure of LASPO to provide genuine access to justice for survivors or those at risk of domestic violence, the great shame is that such limited criteria were ever introduced at all.
The inevitable wide-ranging and devastating impacts of curtailing access to legal aid were made abundantly clear to government long before LASPO was introduced. In a packed hall in the House of Commons on February 2 2011, MPs were warned of the risks posed by further cutting the legal aid scheme in an event called the Commission of Inquiry into Legal Aid. The event was organised by the Haldane Society and theYoung Legal Aid Lawyers.
A full version of this article appear in the latest issue of Proof Life in the Justice Gap: Why legal aid matters.
Proof is the print magazine of the Justice Gap. The latest issue features contributions from Helena Kennedy QC, Martha Spurrier, Lord Tony Gifford QC as well as journalists including the Guardian’s David Conn and Rebecca Omonira-Oyekanmi who has written an extended article reporting from the frontline of the legal aid cuts. The cover and Rebecca’s article is illustrated by the award-winning artist Simon Pemberton.
Illustration by Isobel Williams for Proof magazine (www.isobelwilliams.org.uk).
The evidence presented to the commission as well as its findings were collected in the Justice Gap publication Unequal before the law and included the evidence of ‘SH’ (see later). In the same month, we argued in our consultation response to the Ministry of Justice that the changes would be discriminatory and ‘put women at greater risk of violence by making it harder for them to leave their relationships and resolve issues relating to their children’.
After LASPO came into force the predicted impacts on women were immediately made obvious to us through calls to our confidential legal advice lines. We then collated evidence through a series of surveys carried out in partnership with Women’s Aid Federation of England and Welsh Women’s Aid. Our research findings, culminated in a fifth final report Evidencing domestic violence nearly three years on that consistently demonstrated that around 40% of women responding to our surveys were being denied access to legal representation to engage in family law proceedings because they failed to satisfy the gateway criteria.
These reports include comments from many women. Many spoke of how the LASPO reforms left them trapped in abusive circumstances. One woman told us:
‘Being in such an awful situation and trying to cope with abuse and caring for my children is really hard. Having this additional obstacle in my way just acted as another barrier to getting some support which in turn has made it easier for my husband to continue to be abusive for longer. I understand the need for budget cuts and control over public spending but please don’t make already very difficult situations even harder for victims.’
Using our evidence base, we proceeded to challenge the regulations in the court. A judicial review was brought on our behalf by the Public Law Project and supported by the Law Society. In February last year, after a lengthy legal battle, the Court of Appeal ruled in our favour that the 24-month time limit was unlawful. The judgment also ruled that the Ministry of Justice broaden the list of acceptable forms of evidence to ensure survivors of financial abuse can apply for family law legal aid.
Following the judgment, the government took the positive step of reviewing the domestic violence evidence criteria. At present we are still bound by confidentiality around discussing this process other than to say the proposed changes should hopefully make it a lot easier for survivors to access family law legal aid.
Whilst the outcome of our legal case are undoubtedly a victory for women, we are conscious that LASPO still presents hurdles that negate proper access to legal aid to those in need of support.
Notably, our series of research reports repeatedly highlighted the difficulties women faced due to the legal aid means test and its unrealistic calculations to establish a reasonable income threshold. Many women who were deemed financially ineligible for legal aid were not in a position to pay for representation and therefore forced to represent themselves. We made a submission to the Labour party’s Bach Commission on Access to Justice. On woman told us:
‘I earn a low income, yet I’ve been assessed as having too much disposable income (they don’t take into account living costs for utilities etc…). When you aren’t eligible you’re expected to pay full solicitors’ costs – there’s no help anywhere in between. I’ve had to face my violent ex-partner in court twice now, and will have to continue to do so as I simply cannot afford costs.’
No safety net
In the coming months we will be tackling another problematic aspect of LASPO, its ‘safety net’ provision. Exceptional case funding is supposed to provide funding for those whose cases are not covered by legal aid but merit receiving it on human rights grounds. The system has been heavily criticised for failing to protect the most vulnerable or ensuring human rights obligations are upheld due to the application process being overly complicated (alongside problems with Legal Aid Agency decision-making).
Although more applications are successful as a result of legal action against the government, the process is still widely viewed as inadequate. An Amnesty International report, Cuts that Hurt describes it as not protecting ‘equal and effective access to justice’ and noted that the lengthy process combined with lack of payment for unsuccessful applications were acting as a disincentive for lawyers to take cases on. In many areas of the UK, applicants reported no support being available.
It is therefore unsurprising that around 20% of exceptional case funding applications are now being made by people without lawyers, an increase of 15% since the scheme was first introduced.
We receive a significant volume of calls on our advice lines about exceptional case funding and are pleased that our new project will allow us to provide direct support to some of these women to assist them to make applications. Whilst our support to women will be confidential, we will support any survivors working with us to provide (anonymous) testimony so lawmakers can understand the real impact of this system on their lives.
We are preparing to make detailed recommendations on reform of the scheme. We will focus on making arguments for the same basic equality, safety and fairness that others have articulated so coherently before, not least that brave group of individuals who appeared in the House of Commons back in February 2011.
Our message for lawmakers is to consider the unacceptable humanitarian cost that occurs as a result of not getting legislation right first time and acknowledge this in their application of power through the promised review of LASPO. As our research has showed, the price has inevitably been paid through individual suffering. Society cannot progress when it is eternally trapped in a spiral by draconian and short-sighted laws that undermine the foundations of access to justice.
For more information about our work visit rightsofwomen.org.uk. Organisations providing specialist support to women facing domestic violence needing assistance with exceptional case funding should also check our website.
‘Without legal aid I’d have been forced back into an abusive relationship’
The following account was given by ‘SH’ to the Commission of Inquiry into Legal Aid – as featured in Proof magazine
‘I needed legal help after my partner became abusive and I found myself and my children without a home. We had bought our home together before our children were born. Over time our relationship began to break down. My partner started to drink more and he would be abusive towards me. Although he was not physically violent, he would threaten me physically and was emotionally abusive. He was aggressive and controlling and would shout at me over nothing, telling me I was worthless. Sometimes he would take my bank cards and keys and leave the house for long periods, leaving me stranded in the house and unable to go anywhere.
I became afraid for myself and my children. I decided that I had to get out of the relationship. Eventually I moved out of the home taking our two children with me. This was an extremely difficult time for me. My youngest child was only 18 months old and I had not yet returned to work. My partner had provided for us financially and so I had no resources of my own. I was having to stay with a friend. It was not at all suitable because the children and I were all having to share the same bed.
Although I was joint owner of our home and I was taking care of our children, my partner refused to move out. As a result of his aggressive and unreasonable behaviour, I found it impossible to talk to him or negotiate with him in any way about the use of our home or dividing up our assets. Whenever I did try to discuss these issues with him he would be domineering and aggressive. I realised that I needed assistance, which was when I approached a firm of solicitors.
My solicitor was absolutely fantastic. She told me that I could apply for a court order to get back into my home. I was worried as I had very little money to pay for legal help. I had no access to money because everything had been controlled by my partner. However, my solicitor told me that I could get help through legal aid and she sorted it all out.
At first my solicitor wrote to my partner to try to resolve the case before going to court. However, he refused to respond to any of my solicitor ’s letters or other correspondence. Therefore we had to go to court.
It was really important to me to have help from my solicitor and also my barrister. They explained what would happen during the court proceedings and what I would have to do. I had never been to court before and I had no idea what the procedure was. I was really worried.
At the preliminary hearing my partner represented himself. He was emotional in court and tried to control the hearing. I was very upset by his behaviour. At the second hearing he turned up at court but left before the hearing started. During the hearing my barrister cross-examined me. If my partner had had to do this, or if I had been forced to cross-examine him, I think the hearing would have descended into some kind of slanging match because the situation was so emotional and highly charged.
After the court hearing, the judge granted an order saying that I could move back into my home with my children and my partner had to move out.
Without legal aid I would not have been able to get the help I needed. I would have either been forced back into an abusive relationship or had to move to a refuge with my two children.
I know that the government talks about people being too ready to use the courts as a first answer to their relationship breakdown problems, but in my case I had no choice. My partner was being totally unreasonable and there was no way to negotiate with him without bringing him to court. I needed a greater power than myself to deal with him and for him to listen to. It is people in situations like mine that the legal system is there to protect.
This account appeared in the Justice Gap publication Unequal before the Law which featured the work of the Commission of Inquiry into Legal Aid, an event organised by the Haldane Society and the Young Legal Aid Lawyers which took place in parliament on February 2 2011. Three experts, each with a long track record of promoting social justice, were asked to examining the cases for and against legal aid. Evan Harris, former Liberal Democrat MP; Diana Holland, assistant general secretary of the trade union Unite; and the Reverend Professor Nicholas Sagovsky, until recently the canon of Westminster Abbey were on the panel. They considered evidence from members of the public including ‘SH’ who provided her testimony by video.
Estelle du Boulay
Estelle is the director of Rights of Women. She has been an advocate of women's rights for 20 years, working for charitable organisations including the anti-racist charity Newham Monitoring Project