Legal aid for domestic abuse: a legislative morass


Legal aid for ‘domestic violence’


Human rights legislation may enable a judge to tell the Minister of Justice to answe: are your new legal aid laws lawful? One of the ironies of the Tory legal aid legislation in 2012 (in force from April 2013) is that its complexity increases in inverse proportion to the extent it enables people to consult lawyers to explain it. The more complex the legal aid legislation becomes, the more difficult it is to get help just to explain what it means.


Take domestic abuse. Even that has three definitions. The law calls it ‘molestation’ – a wide spectrum of behaviour which a person (mostly women) should not have to put up with. It is also called ‘domestic abuse’: perhaps to cover a wider range of behaviour than ‘domestic violence’, which is what legal aid legislation calls it. ‘Molestation’ is the term which the judges must apply.


In 1976 Parliament had finally begun to recognise the difficulties of trapped unmarried women and their children – ‘battered wives’ – who could not exclude their violent partners (as could their married sisters) from their homes. A 1976 domestic violence Act was passed. In 1978, early in life the Act the House of Lords (now Supreme Court) considered a case which asked whether Parliament meant to allow an unmarried woman to force a man from a home in his name.


Lord Scarman and domestic violence


Lord Scarman (a great twentieth century judge) defined domestic violence as: ‘conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. [So too is] conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home’.


A recent case in the Court of Appeal has stressed that judges have deliberately not defined the term ‘molestation’. The principle applies that – like an elephant – molestation is difficult to define; but a family judge knows molestation when the judge sees it. And so, it might be thought, should be the law for legal aid; but…


So what of legal aid for the abused woman (it is mostly women)? The Ministry of Justice announced in early 2018 ( in an orgy of self-congratulation: ‘Changes to evidence requirements in private family law disputes have come into effect. There will no longer be a time limit on abuse evidence…’. Eventually the reader realises the press release is about legal aid which may be available to victims of domestic violence or child abuse. ‘To qualify, applicants must provide objective evidence of the abuse while their case is also subject to means and merits tests.’ This ‘objective evidence’ is in a list of 22 paragraphs which tries to do exactly what judges and parliament has said should not be done: it tries to define what the ‘domestic violence’ elephant is.


Now, imagine you are a single mother – Kath – with two small children. You have been forced to leave home by your partner, Nick. He applies to a court for contact with the children. You say has been abusive, and occasionally violent; though there is no physical evidence – there are no marks on you to show a doctor. It is, in Lord Scarman’s words ‘impossible or intolerable [for you] or the children, to remain at home’. You are scared at the prospect of seeing him in court.


Can you get legal aid? You can’t pay for a lawyer to tell you. You have no money. You have minimal state benefits, Nick is paying no maintenance for the children, and you have debts which are out of control. No one will lend you the money to pay for a medical report (required, in your case, by the new regulations), still less to pay for a lawyer (even if the lawyer does not charge).


You try to find out from the internet whether you can get help. If you are patient – and perhaps internet savvy – you will find a definition of ‘domestic violence’ in the modern legal aid legislation (alluringly called Legal Aid Sentencing and Punishment of Offenders Act 2012). The type of help you want is at para 11 of Sch 1 to that Act (in all, 154 sections and 24 Schedules).


What the Act does not tell Kath clearly is that to get legal aid you need to refer to three factors, each in separate unnamed regulations: first to find out if you earn too much money (Kath passes that test); next, whether your case has a prospect of success; and finally for the evidence for legal aid (the regs in question here)?


There are 21 forms of ‘evidence’ listed (some of which leave me baffled). Only the medical report applies to Kath. Without the report she fails at the first hurdle. And even if she can pay, the doctor can only repeat what Kath says. But her lawyer could do exactly the same when they complete Kath’s legal aid application. The medical report, if it does not document injuries, is a legal aid placebo, just something for the Legal Aid Agency to put on Kath’s file.


Legal aid laws, unlawful


Let us stand back from the legal aid legislation morass. European Convention 1950 (ie human rights) says Kath is entitled to a fair trial. Legal aid must be made available or that right may be impeded. Because she cannot pay for a medical report she cannot get the evidence required by the swish new regulations. Without that she must face her former partner alone in court. He may pay for a lawyer (he earned the income in the household); but it is he who, she says, has abused her.


There is a strong argument that the legal aid laws are unlawful. They are impenetrable to the reader who needs them. People like Kath and her children may be denied a fair trial and will suffer. This is where Human Rights Act 1998 comes in. If the laws are so complicated and you – having no means to pay for a lawyer – are denied legal aid, then how can you get to court for any trial at all (or defend yourself)? You cannot get the fair – or any – trial to which you are entitled.


So Mr Gauke: how legal are you laws when it comes to legal aid and domestic violence?

12 thoughts on “Legal aid for domestic abuse: a legislative morass

  1. Of course Nick too may have financial difficulties and may be innocent of the allegations made against him but also denied his right to a fair hearing because he cannot afford legal representation – or even test Kath’s allegations in cross-examination in court.

  2. I understand that paragraph 28 of the revised Practice Direction 12j is being interpreted to exclude the possibility of a party alleged to have been abusive directly cross-examining the party making the allegations. I do not consider that allows for a fair hearing as although certain questions can be identified in advance and put by the judge, they often need developing and it is questionable as to working from scripted questions alone can be effective in eliciting the evidence. The said paragraph 28 provides that:-

    “While ensuring that the allegations are properly put and responded to, the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing or other hearing –

    each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts; and
    the judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.”

  3. This question of unrepresented cross-examination may be one of the most controversial areas of practice in family courts, especially where a complainant is cross-examined by an alleged abuser in person (not helped by the fact that the Government has not brought back Prison and Courts Bill cl 47 yet). Nor is it helped by the fact that the para to which you refer is in a practice direction about contact, when it deals with alleged domestic abuse which is in a different part of the rules (ie FPR 2010 Pt 10).

    Three source provisions first:

    (1) Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

    (6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
    (a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
    (b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

    (2) European Convention 1950 (enacted as a Sch to Human Rights Act 1998) Art 6.3(d) which says that anyone charged with a criminal offence – I’ll explain later why I say that may be relevant here – is entitled to ‘examine or have examined witnesses against him’.

    (3) A rule cannot change the law. It cannot regulate the procedure by which the law is operated (Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 per Lady Hale). This is so even more so in the case of a practice direction (U (A Child) v Liverpool CC sub nom KU (A Child) v Liverpool CC [2005] EWCA Civ 475, [2005] 1 WLR 2657 per Brooke LJ).

    It remains to be discovered exactly what ‘unable to examine or cross-examine’ in s 31G(6) means; but it seems to me to mean it cannot permit the court to prevent cross-examination. There are however ‘measures’ set out in FPR 2010 Pt 3A (especially r 3A.8), and derived from Youth Justice and Criminal Evidence Act 1999 Pt 2 (discussed more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis

    The Art 6.3(d) point is more controversial; but it is the case that an application for a non-molestation order is criminal in character to this extent: that if it is successful and the alleged molestor is arrested he can be dealt with in criminal proceedings (Family Law Act 1996 s 42A; and see eg such cases as Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, at 677). The line between family/civil and criminal here is thin.

    If parties are being prevented from cross-examining then, if I were asked, I would say it was unlawful. It is probably not compliant with Art 6.1, and possibly with Art 6.3(d).

    David Burrows
    25 January 2018

  4. An important case, which needs careful consideration; but I am not sure you are fair to McFarlane LJ in the case: eg as he said at [74] ‘It follows from this brief review that, where an alleged perpetrator is unrepresented, the court has a very limited range of options available in order to meet the twin, but often conflicting, needs of supporting the witness to enable her evidence to be heard and, at the same time, affording the alleged perpetrator a sufficient opportunity to have his case fairly put to her. Of the options currently available, the least worst is likely to be that of the judge assuming the role of questioner.’

    • I was the McKenzie Friend mentioned in this case. My argument was; whether professional or not, a McKenzie Friend should not be in this position. They are a point of last resort and as such should not be subject of a “blanket ban” . Everthing rests on the circumstances of the case. In an age when a father is six times less likely to be represented in Findings [LAA statistics show that prior to April fathers received 60% of funding, since LAPSO that has stayed at 15%], it is a stain on the idea of a fair hearing that one party will be represented and the other not. When you appear in front of Magistrates [who do have a blanket ban on McKenzies speaking] to see a barrister prosecute allegations against a father representing himself, you come to the conclusion that, it would be fairer to just toss a coin.

    • I was really referring to the comments by Hayden J in paras 58 – 60 of Re A, which McFarlane LJ cites as “demanding respect, both because they come for a highly experienced family lawyer and judge,” whereas the comments damn the Father as an abuser and the Mother as a victim without Father having had the opportunity to test other’s evidence.

  5. I see what you mean; and I’ve now had more opportunity to read the judgment in Re J. The subjects raised by Re J need a clear response – including representation (McK Friends etc), cross-exam and so on. Even if the Govt reproduce cl 47 – which they show no real signs of doing – the unanswered questions in Re A and Re J and the fair trial issues invloved need a clear response. I am making a start…

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