CAADA’s response to the Legal Aid Consultation

CAADA recently responded to the Ministry of Justice proposals for the reform of Legal Aid. Read on for for our full response to this public consultation. 

 

Ministry of Justice proposals for the reform of Legal Aid: CAADA’s response to the public consultation

 

Coordinated Action Against Domestic Abuse (CAADA) is a national charity supporting a strong multi-agency response to domestic abuse. Our work focuses on saving lives and saving public money. CAADA provides practical tools, training, guidance, quality assurance, policy and data insight to support professionals and organisations working with domestic abuse victims. The aim is to protect the highest risk victims and their children – those at risk of murder or serious harm.

CAADA welcomes the opportunity to respond to this public consultation for the reform of Legal Aid. We have limited our responses to those areas where we have particular expertise arising from our work nationally with high risk victims of domestic abuse, and our expertise from training over 1000 Independent Domestic Violence Advisors and the implementation of 250 MARACs nationally.

 

Question 1: Do you agree with the proposals to retain the types of case and proceedings listed in paragraphs 4.37-4.144 of the consultation document? Please give reasons.

 

The types of case and procedure proposed for retention are limited by their scope and definition. Although the broad principles are logical and sound, their application appears inconsistent and incorporates limited understanding of the complexity and interrelated nature of the issues involved. In particular:

 

Regarding paragraph 4.64 of the consultation document, which states: “Legal aid is currently available for both legal advice and representation for domestic violence and forced marriage cases. The Government is committed to supporting victims of domestic violence and forced marriage. In domestic violence cases involving, for example, non-molestation orders and occupation orders, the victim is at risk of physical harm and we therefore view these proceedings as at the high end of the spectrum in terms of importance of the issues at stake. We recognise that the state has a role to play in helping claimants to obtain protection and consider that those in abusive relationships need assistance in tackling their situation. The police can provide protection and perpetrators of domestic violence are prosecuted but there will be cases where this does not occur. And while it is possible for litigants to represent themselves in these proceedings, we consider that victims of abuse may be particularly vulnerable. We have therefore concluded that the importance of the issue and the characteristics of the litigants are such that funding is justified.”

 

The definition given for domestic violence is limited to physical violence. This conflicts with the broader Home Office, Ministry of Justice, Association of Chief Police Officers and Department of Health definitions of domestic violence. It also conflicts with the recent Supreme Court judgment in the case of Yemshaw v Hounslow that acknowledged the significance of psychological and financial harm. Importantly it is inconsistent with the definition used in Part IV of the Family Law Act injunctions, despite the fact that these are included as a form of „proof‟ that domestic violence has taken place.

 

Regarding paragraph 4.67 of the consultation document, which states: “We recognise that domestic violence may also be an important element of certain ancillary relief cases (disputes about money and property on divorce) and private law children and family cases (such as child contact and residence disputes). Given the need to direct resources at the issues of highest importance in a fair and balanced way, we consider (see paragraphs 4.154 to 4.158 and 4.205 to 4.215 below) that legal aid is not routinely justified for ancillary relief proceedings and private law family and children proceedings. But we recognise that where there is an ongoing risk of physical harm from domestic violence, different considerations apply. In these cases, we consider that the provision of legal aid is justified where the client may be unable to assert their rights and may face intimidation because of risk of harm. We therefore propose that the following cases are retained in scope for the client at risk:

 

ancillary relief, or private law children and family proceedings, where the LSC is funding ongoing domestic violence (or forced marriage) proceedings brought by the applicant for legal aid, or has funded such proceedings within the last twelve months and an order was made, arising from the same relationship;

ancillary relief, or private law children and family proceedings, where there are ongoing domestic violence (or forced marriage) proceedings brought by the applicant for legal aid, where the applicant has funded proceedings privately or has acted as a litigant in person, or where there have been such proceedings in the last twelve months and an order was made, arising from the same relationship;

ancillary relief, or private law children and family proceedings, where there is a non-molestation order, occupation order, forced marriage protection order or other protective injunction in place against the applicant‟s ex-partner (or in the case of forced marriage, against any other person); and

ancillary relief, or private law children and family proceedings, where the applicant‟s partner has been convicted of a criminal offence concerning violence or abuse towards their family (unless the conviction is spent).”

 

More worryingly, this definition of domestic violence which focuses on physical violence is repeated again in relation to ancillary relief and private law children and family proceedings. This ignores the universally accepted fact that children suffer serious emotional and psychological harm from living with domestic violence, as enshrined in law in S120 of the Adoption and Children Act that defines „witnessing‟ domestic violence as causing significant harm to a child. The objective evidence suggested in the consultation paper is limited to a criminal conviction concerning violence or abuse towards their family (unless spent) and a non-molestation order, occupation order, forced marriage protection order or other protective injunction. This omits other clear and nationally accepted evidence of domestic violence such as being subject to a Multi-Agency Risk Assessment Conference (MARAC – for high risk victims of domestic violence) on being assessed as at high risk of serious harm, or being assessed as high risk using the CAADA-ACPO-DASH risk identification checklist, even if the capacity of the local MARAC does not permit a referral. A MARAC referral is one of the forms of evidence accepted for consideration by UKBA as proof of suffering domestic violence. There is no explicit provision for restraining orders under the PFHA to be included. Finally, many domestic abuse cases involve convictions for offences that may not immediately be connected to domestic violence such as dangerous driving (intentionally with partner and children in the car), misuse of telecommunications etc.

 

Regarding paragraph 4.69 – 4.72 of the consultation document, which states:“Given the need to reduce the deficit we are committed to funding in accordance with our priorities. The Government believes that, wherever possible, it would be in the best interest of those involved in private law family cases which do not involve domestic violence to take a more direct role in their resolution, using mediation and keeping court proceedings to the minimum necessary. For this, and the other reasons set out below (see paragraphs 4.205 to 4.215), we consider that legal aid can no longer be justified routinely for such cases. This approach is consistent with our wider policy of diverting cases away from court, which often gives rise to higher costs, both for those directly involved and the taxpayer.

 

However, we recognise that some individuals within the eligibility limits for legal aid will need assistance in resolving their disputes without recourse to court-based solutions. For this reason we are proposing that legal aid be retained for family mediation in private law family cases, including private law children and family proceedings and ancillary relief proceedings. This will generally apply to cases where domestic violence is not present, but even in those cases where domestic violence is present, we intend to offer support through family mediation, as some couples may still be able to obtain value from the mediation process.

Since the requirement to consider mediation was made mandatory for the legally aided sector in 1997, the number of publicly funded mediations has risen year on year from 400 to almost 14,500 in 2009. This indicates clearly that by improving knowledge about mediation and the benefits it offers, the take-up of these services increases. The full and partial success rate of publicly funded mediations now stands at 70% (with the full resolution of cases accounting for 66% of this).

Given the wider benefits that mediation offers, both to those involved, by creating a less stressful environment in which to reach resolution, and to the taxpayer, by reducing the volume of business that ends up in court, we therefore propose that family mediation services currently funded by legal aid remain in scope. This will include the initial assessment and subsequent stages, as now. We also propose that, where the client enters mediation, a fixed amount of Legal Help will be available to assist clients by providing advice during the mediation and immediately following the mediation to formalise and give legal effect to any agreement reached. Based on LSC data, as agreed by the National Audit Office, the average amount of time spent by solicitors assisting with such mediations equated to £150 of work and we would propose to set the payment fee at this level (and the fee would be payable whether the mediation succeeded or not).”

 

The limitations on the definition of domestic violence have serious consequences for the use of mediation in these cases. Unless there are significant changes to the definition to bring it into line with the practice in other areas, it is clear that a significant percentage of domestic violence cases will end up in mediation. Given the clear guidance to judges regarding the use of Finding of Fact hearings in contact cases where domestic abuse is alleged, this seems to contradict accepted safe practice. Evidence from the Women‟s Aid research into 29 Child Homicides showed that the vast majority of unsafe contact decisions that ended so tragically were made outside the courts. Finally, without the option of having to go to court if mediation fails, then an important pressure to resolve these cases is removed and the percentage of mediation cases that fail will increase substantially.

 

Regarding paragraph 4.86 of the consultation document, which states:“International child abduction: We consider that the abduction of a child is an issue of high importance, given the impact on both the child and its parent of being taken to another country without their agreement. We do not consider that there are adequate alternative forms of advice or assistance to justify the withdrawal of legal aid. We also recognise that it will be very difficult for the left-behind parent to present their own case when they are fighting for the return of their children across international borders, and the litigant may not be familiar with our legal system.”

 

While the inclusion of international child abduction is welcome, the omission of domestic abduction is not. The impact of location is limited for both child and parent if the child is abducted, while the impact of the abduction itself is the same whether at home or abroad.

 

Regarding paragraph 4.100 of the consultation document, which states: “Public law children: Public law children is an area of law which covers proceedings under the Children Act 1989 where the state is considering commencing, or has commenced, care or supervision proceedings in respect of a child, proceedings for a child assessment order, or proceedings for an emergency protection order. This may occur, for example, where the local authority is concerned that a child is suffering or is likely to suffer significant harm if they remain at home. Legal aid is also available for other public law proceedings, such as proceedings concerning adoption. In addition, it is also available for wardship and inherent jurisdiction of the court cases which are heard in the High Court.”

 

Clarity is needed where an interim care order is made where both parents have legal representation otherwise there is a real risk of a child being removed from its parents without them having legal representation.

 

Regarding paragraph 4.105 of the consultation document, which states: Representation of children in rule 9.5 (and 9.2A) private law children cases: “Children are not normally parties to private law proceedings but the judge can, in certain circumstances (under Rule 9.5 of the Family Proceedings Rules 1991), make a child a party to the proceedings if it is in their best interests. In such cases the judge will usually appoint a guardian ad litem („a guardian‟) for the child, unless the child is of sufficient understanding and can participate as a party in the proceedings without a guardian. Making the child a party to the proceedings is a step that is only taken in cases which involve an issue of significant difficulty and consequently should occur in only a minority of cases. Usually a guardian will be appointed by CAFCASS or CAFCASS Cymru, and they will instruct a solicitor on the child‟s behalf. Legal aid is available for advice and representation for the separately represented child. Under Rule 9.2A of the Family Proceedings Rules 1991, a child may also need to be represented where they are instructing directly.”

 

There are serious shortcomings in the proposals regarding Rule 9.5 (and 9.2A) in private law children cases. The provision of legal representation to the child, while not providing it to the parents, risks the fact that the child will be directly cross examined by the parent against whom an allegation of serious abuse might have been made. This is clearly to be avoided if at all possible.

 

While the attempt to offer legal aid to victims of domestic violence is welcome (albeit limited as noted above), it does not cover other vulnerabilities in these cases such as substance misuse, disabilities, and mental health problems. This appears a critical gap and the current proposals risk causing significant injustices in future.

Importantly, legal aid needs to be offered to both parties in domestic violence cases to avoid the situation of the litigant in person cross-examining the victim. The current proposals are inequitable. Further we expect there to be a rise in the number of cross allegations and false allegations as people seek to gain access to legal aid.

 

Question 3: Do you agree with the proposals to exclude the types of case and proceedings listed in paragraphs 4.148- 4.245 from the scope of the civil and family legal aid scheme? Please give reasons.

 

Regarding paragraph 4.203 of the consultation document, which states:“On balance, the Government does not consider that immigration issues are of sufficiently high importance in general to justify continued legal aid funding. We recognise that there will be cases in which important issues arise, such as the right to a family life. However, individuals will generally be able to represent themselves (with the assistance of an interpreter where necessary) in tribunals that are designed to be simple to navigate. We do not consider therefore that the routine provision of legal aid is justified in these cases, since we need to focus our limited resources on higher priority areas for funding.”

 

The statements that individuals will generally be able to represent themselves in tribunals that are designed to be simple to navigate‟ is quite simply not borne out by the facts. The success of organisations such as Asylum Aid in its‟ appeals work bears out the fact that even with legal aid, the immigration tribunal process is not straightforward, nor does it consistently achieve the correct decision.

 

Regarding paragraph 4.207 of the consultation document, which states: “While we understand that those going through relationship breakdown may be dealing with a difficult situation, both emotionally and often practically too, we do not consider that this means that the parents bringing these cases are always likely to be particularly vulnerable (compared with detained mental health patients, or elderly care home residents, for example), or that their emotional involvement in the case will necessarily mean that they are unable to present it themselves. There is no reason to believe that such cases will be routinely legally complex. As noted in paragraph 4.156, there are also other sources of advice available to help couples following the breakdown of their relationship.”

 

There is a real concern that the assumption made here that such cases „are not routinely complex‟ misses two crucial points. Firstly, it is only those minority of cases that are both legally and emotionally complex that ever end up in court. This is a last resort and one that all parties will naturally avoid if possible. Secondly, the impact of hostile and acrimonious parental relationships will have a very negative impact on the psychological well being of children, whether or not domestic abuse is involved.

 

Regarding paragraph 4.209 – 4.211 of the consultation document, which states: “The vast majority of children had the contact arrangements with their non- resident parent arranged informally without the assistance of the Courts, lawyers or mediators (85% of children whose resident parent was surveyed and 75% of children whose non-resident parent was surveyed). We are concerned that the provision of legal aid in this area is creating unnecessary litigation and encouraging long, drawn-out and acrimonious cases which can have a significant impact on the long-term well-being of any children involved.

 

We do not consider that it will generally be in the best interest of the children involved for these essentially personal matters to be resolved in the adversarial forum of a court. The Government‟s view is that people should take responsibility for resolving such issues themselves, and that this is best for both the parents and the children involved. We therefore consider that scarce resources should be targeted to areas where publicly funded legal assistance is more likely to be justified and of practical benefit to the parties involved.

 

The Government is also concerned about the impact that legal aid provision has on the opponents of those who receive funding. Legal aid funding can be used to support lengthy and intractable family cases which may be resolved out of court if funding were not available. In such cases, we would like to move to a position where parties are encouraged to settle using mediation, rather than protracting disputes unnecessarily by having a lawyer paid for by legal aid.”

 

It is not clear what evidence is being used to assert that legal aid is currently being used to create unnecessary litigation nor, more importantly, that the absence of legal aid would result in „lengthy and intractable family cases being resolved out of court if funding were not available.‟ There should be no doubt that it is a small minority of cases where lengthy private law proceedings are funded by legal aid and it is in just such cases that expert intervention is required to limit the harm and ensure the safety of children.

 

Question 6: We would welcome views or evidence on the potential impact of the proposed reforms to the scope of legal aid on litigants in person and the conduct of proceedings.

 

Regarding paragraph 4.267 of the consultation document, which states: “We believe that many of the cases currently funded through legal aid could be resolved without recourse to the courts. Nevertheless, litigants are entitled to bring their cases to court, and to represent themselves, if they wish. We also expect that many of the litigants representing themselves will be doing so in fora where the proceedings are particularly suitable for litigants in person.”

 

We have serious concerns about the impact on victims of domestic abuse of facing a litigant in person who is not represented. This proposal risks lengthening the time taken in cases, wasting limited court resources and adds additional stress and trauma to the family.

 

Question 7: Do you agree that the Community Legal Advice Helpline should be established as a single gateway to access civil legal aid advice?

 

We have real concerns about the viability of this proposal for individuals with additional vulnerabilities including domestic abuse, substance misuse, mental health problems and for whom English is not their first language. Further, it will require a degree of skill and training for the gateway operators to establish whether someone is eligible or not for legal aid in situations that are complex and where individuals are under stress. This is particularly the case for victims of domestic violence who have not disclosed their situation before to the police or another agency.

 

Question 8: Do you agree that specialist advice should be offered throughout the Community Legal Advice Helpline in all categories of law and that, in some categories, the majority of civil Legal Help clients and cases can be dealt with through this channel?

 

There is a risk that the focus of providing advice through the CLAH is on limiting the costs of supporting any case, rather than the traditional focus of law centres, CABs and solicitors, which is to ensure the best result for the individual and their children. This is potentially a serious shift that will leave vulnerable people without representation and will infringe their rights. It might be both more efficent and cost effective to use existing legal advice services to provide the CLAH service rather than duplicating their work.

 

Question 9: What factors should be taken into account when devising criteria for determining when face-to-face advice will be required?

1. We believe that many advice services can be effectively offered by telephone and may indeed be more practical for people with young children, limited time, disabilities or living in remote areas.

2. There are some more obvious categories of people needing face to face advice including those with learning disabilities, those for whom English is not their first language and those who cannot access telephone advice safely, or those whose substance misuse or mental health problems prevent them from understanding the advice fully.

3. We would suggest that people should be given the choice of face to face or telephone support, and that the decision be taken about the appropriateness of face to face support after the first meeting, i.e. this does not need to be simply one form of support or another.

CAADA February 13th 2011 For more information, please contact ceo@caada.org.uk

 

© CAADA 2011

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