Current legal aid regime puts victims at risk

Punched in the face. Strangled. Stalked. Expected to always cook homemade meals. Kicked in front of the children. Over the threshold to qualify for legal aid to protect herself. Had to make an ex parte order on her own (her furious husband turned up at her house the day after the order was served on him). Attended a court hearing, hand held by someone from Women’s Aid, while her husband turned up with a barrister. Fortunately, granted an order (she visited her GP throughout her ordeal and her injuries were recorded).

This particular victim of domestic abuse relayed her ordeal at a meeting of the all-party parliamentary group on access to justice this week. The victim’s marriage ‘started off normally’, she said. The first time he punched her, he cried and promised never to do it again. The next time, ‘he was not quite so sorry’. The time after that, ‘maybe if you hadn’t done that…’, he said.

Domestic abuse commissioner Nicole Jacobs told the event she wants to see more specialist support for domestic abuse victims.

Family courts in Dorset and North Wales have been trialling a ‘problem-solving’ approach to improving the court’s response to people who have been affected by domestic abuse. ‘Victims and survivors say they feel so much more confident to speak because they are now better supported,’ Jacobs said.

Understanding the context of domestic abuse is important, the event heard. However, the struggle to access legal aid has made this difficult.

Human rights lawyer Baroness Kennedy of the Shaws (Helena Kennedy KC), who chaired the discussion, said the number of family lawyers doing legal aid work has diminished in the last decade as a result of the Legal Aid, Sentencing and Punishment of Offenders Act. ‘They’re not choosing to do [legal aid work] because they cannot survive, they cannot get a mortgage, they cannot live. Most of them are women and they cannot survive on the money that’s available.

‘We talk about a case being “within scope” [for legal aid]. But the way in which things are defined is very narrow. It is very difficult to get legal aid.’

Solicitor Jenny Beck, founding director of Beck Fitzgerald, highlighted three ‘critical’ areas where change is needed.

The first area is early legal advice. Women need to understand how the law protects them, Beck said. The means test hurdle needs to be removed and the merits gateway revisited. Beck told the event that a few hours earlier a colleague’s legal aid application was refused. Why? A GP letter said the applicant’s mental state ‘may be domestic abuse’ rather than ‘consistent with domestic abuse’.

The second area is the removal of legal aid for the alleged perpetrator. As well as being a false economy, it undermines fair justice, fuels polarisation and can lead to the abuse continuing in court. ‘Qualified legal representatives are not there because they need to be funded and they are not being funded. Cases are lasting longer, so it’s more expensive. Judges are having to act as case managers. It’s a lose-lose situation for everyone,’ Beck said.

The third area is the ‘entirely unmanageable’ fee structure. The ‘paucity of the fixed fee undermines women’s safety’ and fees need to properly reflect the cost of working with traumatised women.

A consequence of the current fixed fee regime is that lawyers are focusing on what can get a case to court as quickly as possible to protect their client. Coercive control is being ignored because it takes time and trust to expose. ‘[The] way the fee scheme functions puts a lid on the most dangerous and most corrosive types of behaviour,’ Beck said.

A pilot starting shortly will spare domestic abuse victims the ordeal of going through multiple court hearings to obtain a protection order. ‘Whether it be an occupancy or non-molestation order that is needed, victims can go to the magistrates’ court or family court and get all the stuff they might normally want to get in a domestic abuse case in one order at one hearing, rather than having to go to multiple hearings’, justice minister Laura Farris said.

While the pilot is welcome, victims should never go through the process alone. The government’s civil legal aid review, which is looking at family, provides the perfect opportunity to improve the fee structure and prevent that from happening.

 

 

Reproduced from the original article in The Law Gazette https://www.lawgazette.co.uk/news/in-focus-domestic-abuse-victims-are-denied-justice-parliamentarians-told/5118925.article

Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children. 

She is an accredited Resolution specialist and an Advanced Family Law Panel member. In 2021 Jenny was made an Honorary Kings Counsel (KC Honoris Causa) in recognition of her contribution to changing the law of England and Wales