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 (https://www.gov.uk/government/news/changes-to-domestic-violence-evidence-requirements-come-into-effect) 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?