Domestic violence and legal aid: a real horror story for Halloween. By John Bolch.

Divorce|October 31st 2013

A couple of days ago I posted about how government policies can have unintended consequences, particularly in relation to the recent changes to legal aid. It didn’t take long to come across what may be another example.

The Association of Lawyers for Children has published the results of research by the voluntary organisation Rights of Women into the impact of new regulations setting out the criteria for domestic violence victims to obtain legal aid. Since 1 April 2013, legal aid for private law family matters (i.e. not involving a local authority) has only generally been available where there has been domestic violence.

The regulations set out a list of ten forms of evidence of the domestic violence or the risk of domestic violence, at least one of which must be provided by the victim in order for them to apply for legal aid. Examples of the evidence required are:

  • An unspent criminal conviction against the abuser for a domestic violence related criminal offence;
  • A non-molestation/occupation/forced marriage/restraining order against the abuser which is in force or was made in the past 2 years;
  • Evidence from a doctor, nurse or midwife that they examined the victim within the past 2 years about an injury or condition she had as a result of domestic violence; and
  • Evidence from a women’s refuge that the victim stayed there for more than 24 hours in the past 2 years.

The research, which surveyed women victims of domestic violence who were trying to obtain legal aid for a family matter, found that the regulations are restricting their access to legal aid. Key findings of the research were that:

  • Half of all women who had experienced or were experiencing domestic violence did not have the prescribed forms of evidence to access family law legal aid;
  • 16.7% of respondents to the survey had to pay over £50 to obtain copies of the required evidence;
  • 37.5% of respondents had to wait longer than 2 weeks to get copies of their evidence;
  • 60.5% of respondents took no action in relation to their problem as a result of not being able to apply for legal aid;
  • 23.7% paid a solicitor privately; and
  • 15.8% represented themselves at court.

The effect of not having legal aid in circumstances where there has been domestic violence can of course be devastating: the risk of further abuse, not being able to pursue a legal right, delay, unaffordable expense and having to face up to an abuser in court without representation. Here is a typical comment from one respondent to the survey:

“This has given my husband even greater control over me and now I feel completely at his mercy… My husband thanks the government from the bottom of his heart for allowing him to carry out his entrapment with confidence in knowing that his wife can’t do a dam thing about it, as she’s stuck in no man’s land.”

As victims of domestic violence, the respondents to the survey are the very people whom the Government had expressly sought to protect from the removal of family law from the scope of legal aid. Clearly, as a result of the obstacle created by the regulations the Government has failed in that aim.

Another example of the law of unintended consequences? Of course, the uncharitable view is that the Government knew exactly what it was doing and purposely raised the bar as high as possible, to restrict access to legal aid and therefore keep the legal aid bill down. Personally, I wouldn’t suggest such a thing…

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(15)

  1. Luke says:

    Looking at the examples of evidence the new law looks about right to me.
    Based on what we are reading here the idea that a serial batterer can gain a big advantage from the new law is in my opinion hyperbolic nonsense from a heavily biased “research” organisation.

    Of course if you are a man suffering domestic violence it is still going to be much much harder – especially as Refuge places for men seem to be a bit of a joke – this is what I could dig up:-

    There are 72 bed spaces in refuges in the UK for men. 44 of these spaces can be used by women. 18 of these spaces are exclusively for gay men that leaves 10 (TEN) dedicated male refuge beds in the UK for heterosexual and gay men. There are 7,500 spaces dedicated to female victims.

  2. Paul says:

    Research in any objective sense coming from the Rights of Women is an impossibility. Their kind of “research” is strictly for the zealots or the gullible. The “typical comment” you highlight sounds utterly bogus given its highly politicised overtones.

    I’m sure the fanatics on Mumsnet will find a workable way round the regulations sooner or later. Word will get out on how the undeserved can continue to con their way to free legal aid.

    If anyone is really getting battered they should dial 999.

  3. Anonymous says:

    Violence is a matter for criminal courts. Making it a matter for family courts just shows the depths to which lawyers will sink to try and capitalise on others emotional vulnerability. The real violence is of course family law.

    As is obvious, this is all just about saving face. Instead of owning up to the fact that you are equally to blame in a marriage breakdown, it’s so muc easier to be a worm and resort to allegations, especially with lawyers encouraging you, and with the system set up to reward you so well for dishonesty.

    Being close to the industry for several years now, this is just so obvious.

    Also legal aid is readily available for mothers making allegations, not for men. What does that say about equality?

    The propaganda seems to become more relentless the more lawyers firms profits fall.

  4. u6c00 says:

    Your example types of evidence are inadequate for an unbiased article. You neglect to include that an undertaking is acceptable evidence (Source: http://www.justice.gov.uk/legal-aid-for-private-family-matters/legal-aid-divorcing-separating-abusive-partner). In light of that the bar is actually pretty low. A non-molestation order OR an undertaking?

    What’s the standard response to an application for a non-molestation order? Well the respondent would offer an undertaking, and if they didn’t the court would issue the non-molestation order because better safe than sorry may as well be added to the coat of arms.

    I would be really interested to know if the number of applications for non-molestation orders have increased since the legal aid cuts. That would be some really interesting unintended consequences.

  5. John Bolch says:

    Thank you all for your views. I’m not going to get into a discussion, but a few points:

    1. Rights of Women is, obviously, only concerned with DV against women. That does not mean they believe only women are victims.

    2. Men are, of course also victims of DV, as any family lawyer will know.

    3. I’m sure some people try to take advantage by fabricating or exaggerating allegations, but that is the price that must be paid to protect the real victims.

    4. DV is now usually dealt with by the police and criminal courts.

    5. There is nothing in the regulations that favours women over men.

    6. Lastly, the idea that lawyers are involved in some sort of conspiracy to gain income is laughable. If they want to make money, they will give up legal aid work entirely!

  6. u6c00 says:

    Thank you for taking the time to reply John.

    I am curious about your point number 3. Lucy Reed from Pink Tape made a FOI request showing that almost no one had successfully obtained legal aid a couple of months after the changes took effect. If that’s still the case, and the other evidence in your article suggests that this is likely, then this law doesn’t protect real victims of DV (which is an appalling situation).

    Allowing people, likely mostly women, to make allegations leading to non-molestation orders could be seen to create a different kind of victim in my opinion, mostly men, who have no hope of ever seeing justice served on their perpetrators. You might easily argue that making false allegations is a form of domestic abuse akin to gaslighting.

    To my mind as a layperson, throwing one group in society under the bus to save another group is wholly incongruous with my concept of justice.

    Don’t get me wrong, I actually opposed the legal aid changes, both to family and to criminal legal aid, and continue to be of the opinion that they are damaging to the notion of justice in our society. I just think that an undertaking is NOT proof of domestic violence.

    Interestingly, a cross-undertaking is not considered sufficient proof of domestic violence, so I wonder if that will change the number of men making false allegations against women to try and protect themselves.

  7. Stitchedup says:

    I have a real issue with point no.3 John, in fact I feel positively sick. You’ve made your views very clear here John, I’m not surprised you don’t want to get into a discussion.

  8. Anonymous says:

    You write an article full of errors and don’t want discussion? Oh, please.

    1. when you’ve only got organizations that advance the interests of one class, group, race over another, those organizations will need to be sustained by lies and bent research in order to sustain their funding.

    2. there is no ‘of course’ here. men are routinely told that talking about how they have suffered will just look ‘laughable,’ or that this will be ‘proof’ that they were in fact the perpetrators. they are also counseled by solicitors not to mention violence in court because it will just look vindictive.

    3. this point has been dealt with; it is indeed ‘positively sick.’ To protect 2, we need to slaughter 200, and all their children to boot. Righty-o.

    4. no it is not. the only people that are interested in it are the family law people. making these allegations is directly linked to control of children and finances. look at the statistics. couples without children never see one party making these allegations; no need.

    5. No, the world has never seen any form of discrimination. All is well, and always has been.

    6. No conspiracy. What is curious is the need for people in the industry not just to assume, but to assert that all fathers are bad, that only they could be to blame for marriage breakdown, and the need to go on an on about it. It’s just pathetic, and begs an explanation. If the motivations for this dishonesty are not economic, what are they?

  9. JamesB says:

    No, the ends do not justify the means, I disagree with John on that also. It’s like calling the children from broken homes necessary collateral damage to advance the rights of women.

    It is not right to do what you like and then make up law and excuses for it. That is what got us into this mess in the first place and I have a real issue with the lack of rape convictions due to this mentality. Like Wachtel and Wachtel saying conduct is not a factor in divorce. Like saying anything is Unreasonable Behaviour.

    Eventually you bring the court into disgrace and people just go in their laughing and taking the mick out of lawyers (a point we are not too far from currently in my opinion), and people seek redress through proper courts or more realistic means, such as through family or courts or not marrying.

    To say trust the establishment when the establishment is so discredited (e.g. Hillsborough, Jeffrey Archer, Aitkin, MPs expenses and homes etc.) as you do, you lose the argument.

  10. JamesB says:

    I also take issue being called told I am an acceptable price / collateral damage of an otherwise sensible broad brush approach, very poor that. I do give you credit for at least saYING IT THOough which is more then the Judges do, they just say the non real reasons for their orders, the real reasons, such as – she is the mother – don’t get mentioned as they don’t bear scrutiny as your points here do not.

  11. JamesB says:

    Another scenario, the court backing a badly behaving woman to move in her boyfriend, kick out the man, get him to pay for it and lose his kids and home and everything and have to pay (maintenance) for the dubious pleasure to the new household with the new fella in. A price worth paying for ‘progress’, I think not, that makes no sense what so ever to most right thinking people, yet is standard practice for courts to enforce day in day out in this country, yes, sick.

  12. JamesB says:

    Mothers or Fathers can be in the wrong the default position of the courts that the father is wrong is wrong.

  13. Stitchedup says:

    “I’m sure some people try to take advantage by fabricating or exaggerating allegations, but that is the price that must be paid to protect the real victims.” – This the “a real horror story for Halloween.”

  14. Gentlergiant says:

    I am not belittling the blight of domestic abuse victims. I just wish I wasn’t at the mercy of this farcical set up by virtue of my sex and my marital status. Take this quote;

    “This has given my husband even greater control over me and now I feel completely at his mercy… My husband thanks the government from the bottom of his heart for allowing him to carry out his entrapment with confidence in knowing that his wife can’t do a dam thing about it, as she’s stuck in no man’s land.”

    Change the genders, and any man divorcing under English Family Law could say it of the institution of marriage today.

    “This has given my wife even greater control over me and now I feel completely at her mercy… My wife thanks the government from the bottom of her heart for allowing her to carry out her entrapment with confidence in knowing that her husband can’t do a dam thing about it, as he’s stuck in no man’s land.”

    The light at the end of the tunnel is being snuffed out.

  15. Luke says:

    “3. I’m sure some people try to take advantage by fabricating or exaggerating allegations, but that is the price that must be paid to protect the real victims.”
    =======================

    I don’t agree with many of your clarifications John but this one is in a different league.
    Real victims ? You don’t think that men who are found guilty of trumped up DVA charges are ‘real’ victims ??? You think their lives being destroyed are a ‘price worth paying’ !!!

    I think many of your posts on Marilyn’s blog have been a great addition John but in order for you to retain credibility it is my view that you need to withdraw that statement.

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