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Monday, October 31, 2011

Legal Aid and Domestic Abuse. Helen Grimbleby

Will victims of domestic abuse be worse off with the proposed Legal Aid changes?
Helen Grimbleby


Today, 31 October 2001 sees the Report Stage of The Legal Aid, Sentencing and Punishment of Offenders Bill in the House of Commons.

This Bill fundamentally alters the way in which the state funds legal advice and representation (legal services) moving from the current opt out system where everything is funded unless specifically excepted to an opt in system where nothing is funded unless specifically provided for.

This blog is an in depth analysis and comparison of the legal aid law and guidance as it is now and how it will be if the 2011 Bill is enacted which will allow us to answer the questions will victims of abuse be worse off and if so how.

Do domestic abuse victims still qualify for legal aid?

Domestic Abuse will continue to be funded being specifically provided for within the legislation including:
·         home rights, occupation orders and non-molestation orders (under Part 4 of the Family Law Act 1996).
·         an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where A has been abused by B or is at risk of being abused by B
o   there is a family relationship between two people if they are associated with each other[1] and
o   “abuse” means physical or mental abuse, including(a)sexual abuse, and (b)abuse in the form of violence, neglect, maltreatment and exploitation

What is all the fuss about?

The legislation continues to provide funding for domestic abuse cases so I started to wonder why some Parliamentarians, media and women’s groups are getting very hot under the collar.

The Association of Chief Police Officers (ACPO) definition of Domestic Abuse is
‘any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’ (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)

This definition is wider than the Bill envisages because it includes wider family members.
The current Legal Services Commission Funding Code and its decision making guidance currently provides that funding is
“not limited to any particular definition of domestic abuse” thus capable of encompassing wider family members.

The Bill on the other hand does not include family members and thus reduces the groups entitled to funding for legal services.

I have read and re-read the legislation and nowhere could I find reference to the need for the highest level of evidence of abuse to be able to secure funding.  I am confident that the legislation does not in itself do this. That, however, is not the end of it.

The Lord Chancellor will set out criteria in secondary legislation (Regulations) to determine whether an individual qualifies for legal services. These Regulations are not yet drafted but the government’s response to the consultation gives a good guide as to what they might contain:

1.      (Only) The following circumstances would provide appropriately clear, objective evidence of domestic violence for the purposes of qualifying for legal aid
o   there are ongoing criminal proceedings for domestic violence offence by the other party towards the applicant for funding
o   the victim has been referred to a Multi-Agency Risk Assessment Conference (as a high risk victim of domestic violence) and a plan has been put in place to protect them from violence by the other party; and
o   there has been a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm.

The current criteria are not prescriptive as to acceptable evidence. The current threshold for refusal of funding is where the prospects of success are poor. There is no doubt that this amendment will raise the evidential bar for those who are eligible for legal services.

This will undoubtedly reduce the pathways for redress that are open to victims of domestic abuse.

It does also seem to go against other measures such Domestic Violence Protection Orders currently being piloted by the Home Office which aim to provide breathing space for victims to seek legal advice and longer term remedies such as non-molestation orders (but not, it would seem if the victim needs legal services funding) – bearing in mind that financial abuse is a common feature of domestic abuse you see the problem? Is this a classic case of the Ministry of Justice failing to consult properly with the Home Office???

2.      There will be a twelve month time limit to protect victims and to enable them to deal with their private family law issues.

Victims of domestic abuse often suffer for years before seeking redress. Enough said. This time limit does not exist at the moment.

3.      Legal aid would only be available for the victim of domestic violence or the protective party, and not to the other party

On the whole, this follows the ACPO guidance which encourages the police to identify a perpetrator and victim in each case. There is, however clear evidence of where this is extremely difficult and when incidents are looked at in isolation those roles might seem to be the reverse of a longer term pattern of behaviour. A blanket rule is questionable.

4.      Mediation will be an alternative to legal action.

Really? This idea is fraught with danger for victims and could risk perpetuating a cycle of violence and low self-esteem. There has been a statutory duty to consider mediation since 1997 but the underlying presumption that this could be appropriate for domestic abuse cases is definitely new.


Victims of domestic abuse will have less access to justice under the current proposals especially if they are non-intimate partners or if they do not make a formal complaint or if they are not assessed at the highest risk.

This will have a disproportionate impact on women but will also impact on men.

Helen Grimbleby
*Opinions are individual to the author. 

[1] they are or have been married to each other, they are or have been civil partners of each other, they are cohabitants or former cohabitants, they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder; they are relatives, they have agreed to marry one another (whether or not that agreement has been terminated, they have or have had an intimate personal relationship with each other which is or was of significant duration,  they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated), in relation to any child, they are both parents or having parental responsibility, they are parties to the same family proceedings  

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