Two years ago, cuts to legal aid resulted in the removal of legal aid in divorces unless one of the parties had been the victim of domestic violence.
Some MPs have not taken a favourable view of statistics released by the Ministry of Justice showing that the number of non-molestation orders issued by the courts to protect people from harassment, intimidation or violence has increased by 21 percent, from 4,925 to 6,101 between 2012 and 2014 in England and Wales.
In the Midlands, there has been a 92 percent increase in non-molestation orders over the past two years. Tory MP Andrew Bridgen stated: “it is obvious that making domestic abuse the gateway for legal aid has caused an explosion in the number of allegations of domestic abuse, many of which may be baseless and made simply to secure legal aid.”
MPs have recently claimed that these statistics have led to false allegations of domestic violence. Such statistics and the resulting assumptions can have devastating ramifications on both the accused and other victims of domestic violence. These statistics are set against the backdrop of the Court of Appeal hearing a challenge to government changes to legal aid for victims of domestic violence.
This piece considers the difficulties in securing legal aid as victim of domestic violence, the difficulties faced by victims of domestic violence and warns those considering making allegations of domestic violence.
How easy is it to get funding for legal aid as a victim of domestic violence?
The assumption that the rise in allegations of domestic violence is directly related to trying to secure legal aid funding implies that all you have to do is scream "domestic violence" and the legal aid is provided. The reality is rather different.
Although the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO 2012') preserved legal aid for victims of domestic violence to acknowledge the fact that 'victims of domestic violence may be vulnerable to intimidation, and disadvantaged in legal proceedings, if they are forced to represent themselves against the perpetrator of the violence', the threshold for such funding is high. The victim must provide evidence of the domestic violence or the risk of domestic violence.
Such evidence may include the accused having an unspent conviction for a domestic violence offence, a police caution, evidence of relevant ongoing criminal proceedings for a domestic violence offence, or medical evidence confirming that injuries sustained by the victim were consistent with those of a victim of domestic violence. The need for such evidence and the time limits on the evidence means that actually it is very difficult to secure legal aid funding as a victim of domestic violence.
The impact on true victims of domestic violence
A parliamentary watchdog last year reported that a third of victims of domestic violence cannot provide the evidence required to obtain legal aid. The threshold makes it incredibly difficult for victims of domestic violence to secure legal funding, not least those who are at risk of domestic violence. It would not be possible for those at severe risk of domestic violence to produce documentary evidence in the prescribed form and therefore they would find it exceedingly difficult to secure the legal aid funding.
The 24 month time limit is also problematic. Victims of domestic violence are lifelong victims. It can take years after an incident for victims of domestic violence to have the courage to launch legal proceedings and if two years has lapsed since an incident of domestic violence then the victim will not have the requisite supporting evidence for legal aid. This leaves the victim having to face the perpetrator of domestic violence without legal representation.
David Emmerson, co-chair of Resolution, told the Guardian that: “We’ve even heard of people being subjected to the horrendous experience of facing the courts without legal support, only to be cross-examined directly by their abuser. Surely the government did not intend this situation, which amounts to a perpetuation of abuse, as a consequence of the legal aid cuts.”
The Court of Appeal has been told that victims of domestic violence are not getting the requisite support. Campaign group, Rights of Women (ROW) have argued that the restrictions affecting family law cases are unlawful. We will report back on the Court of Appeal’s judgment once it is released.
A warning to those considering making false allegations
People who have made ‘baseless’ allegations of domestic violence, ought to think very carefully about the impact such allegations may have not only on the accused and on genuine victims of domestic violence.
An allegation of domestic violence will have a long term effect on the entire family. The allegation could also have long term effects on the entirety of the family law proceedings.
In children matters, there is a risk that the accused will have restrictions placed upon their time with their children including measures like supervised contact. In divorce and financial proceedings, it is worth noting that the accused does not qualify for legal aid. Defending false allegations of domestic violence are likely to increase hostility between the parties and make a swift resolution of the case unlikely. The effect of this will be that the costs will eat into the assets.
I would like to think that the connection between the increase in reported incidents of domestic violence and the cut in legal aid is a mere coincidence. Victims of domestic violence often struggle to have the courage and conviction to speak out. False allegations of domestic violence undermine the bravery of the true victims.
The last thing victims need to worry about is the suspicion that they are lying with the sole intention of securing legal aid.
When the statistics of reported incidents of domestic violence increase for the right reasons, this should be celebrated not tarred with the brush of deceit and desperation for legal aid funding.
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