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Overcoming the Hurdles to Justice ….
In April 2013, the system of Legal Aid in England and Wales underwent vast changes effectively denying access to Legal Aid in respect of family matters. Legal Aid is now only available to those who are able to show that they are financially eligible and are/have been a victim of domestic abuse occurring within the last 24 months.
Legal Aid also remains available for children matters where a child is a risk of harm from the other parent and also in relation to obtaining protective injunctions such as non molestation orders and occupation orders.
As part of the Governments “Austerity Measures,” the purpose of the changes was clear; to reduce the costs of an ever increasing Legal Aid budget. What was not so clear was whether the Government had properly considered the indirect costs which would increase as a result of the cuts such as the increased burden upon the courts in terms of resources and court time in dealing with the increased number of highly emotionally charged people trying to represent themselves. The Government instead had hoped that people could be encouraged to use alternatives to court, the main one being Mediation. This desire further underlined by the introduction of Mediation Information and Assessment Meetings (MIAMS) and the changes to the Court Process which made attendance at a MIAM compulsory for the vast majority of cases. However, with Mediators across the country reporting a decrease in referrals, this approach has clearly failed and is itself the subject for another discussion.
With regards to the continuation of Legal Aid for victims of domestic abuse, the Governments intentions are laudable. It is however arguable that the current rules of the scheme are such that they fail dramatically to protect the very people that need help most desperately and who are statistically most likely to be female and/or disabled.
The current definition of Domestic Abuse is: Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”*
*This definition includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
In order to access Legal Aid on this basis however, the victim must be able to prove that they have suffered Domestic Abuse by providing one of the following;
Types of evidence:
• criminal conviction
• police caution
• police bail
• ongoing criminal proceedings
• protective injunction
• an undertaking
• letter from a Multi Agency Risk Assessment Conference
• finding of fact, by a court
• letter from social services
• letter from a doctor (including a family doctor or ‘GP’), nurse, midwife, practitioner psychologist or health visitor
• letter from a domestic violence refuge or refusal of entry to refuge
• referral to a domestic violence specialist support service by a doctor, nurse, midwife, practitioner psychologist or health visitor
• a Domestic Violence Protection Notice or Domestic Violence Protection Order granted
• a bind over
As a firm of Solicitors who are committed to our continued delivery of Legally Aided Services, we are continuing to see clients who are having real difficulty in obtaining the necessary evidence of Domestic Abuse. This can be for a large number of reasons for example;
1) A Victim who has suffered in silence and either not reported it to anyone or not been taken seriously when they have reported it. Victims may fail to report Domestic Abuse because they are scared of the repercussions both perceived and threatened or because they have not recognised that they are in an abusive relationship. They may have been told that if they tell anyone, Social Services will take away their children, that they will have to leave their home, be deported or that their partner will be arrested.
2) Although, the definition of Domestic Abuse is wide, not all forms of Domestic Abuse are usually likely to result in a report or referral being made to any of the above organisations. By way of example; financial abuse might occur where one partner controls the finances entirely down to leaving 50p on the side which allows the mother to attend a mother and baby group but then fails to do so as a matter of control or perhaps he regularly goes off with the child’s pram in the car leaving the mother with no means to go out. In isolation it may mean nothing but it may form part of a pattern of abusive behaviour.
3) The type of evidence which is permitted and the information that it must contain is very specific. If it does not provide all of the necessary information, then Legal Aid will not be available.
Clients seeking Legal Aid must have the evidence before they will be able to see a solicitor under the scheme and therefore they will have to seek this evidence themselves. It is therefore extremely important that if you are a Victim of domestic abuse seeking to access Legal Aid, an organisation who might be approached to provide the evidence or an organisation which may regularly deal with victims of domestic abuse that you are aware of these requirements and can access, assist or at least signpost the victim to enable them to access the help they need.
In order to assist Victims and organisations in obtaining or providing suitable evidence further guidance can be found by following the above links and by visiting:-
Victims will find here the template letters to send to the organisations they feel may be able to provide the required evidence.
If you are an organisation and have been asked to provide evidence to help with a legal aid application, then you can use the following template letters to help provide that evidence in the appropriate form if you are:
o a Doctor (letter following examination)
o a Doctor (letter confirming referral)
• a MARAC
• Social Services
• Social Services providing evidence for a child protection matter
• a Refuge
• a domestic violence specialist support service
There is a long way to go before all of these issues can be addressed and it is likely that there is nothing that can be done overnight to resolve all the issues that these vulnerable clients have in accessing services. A relaxation of the types of evidence which will be accepted is likely to help but this requires changes to be made a Government level.
In the meantime, it is imperative that we spread the word and make ongoing effort to raise awareness of domestic abuse and the support services available in order to empower victims to be able to access the support that they need and provide appropriate reassurance to dispel the myths.
For more information about or services please phone 01992 558411.
Karen Johnson – (Associate Solicitor and Family Mediator) – A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London and then Qualified as a Solicitor in 2002 working in a local High Street Firm before Joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011.
Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.
Karen is a Chair and Trustee of East Herts and Broxbourne Domestic Violence Forum.