Concerns over domestic violence regulations
Steve Hynes, LAG’s director, explains why campaigners and lawyers believe that the Civil Legal Aid (Procedure) Regulations (‘the Procedure Regs’) 2012 SI No 3098 on the domestic violence gateway to qualify for legal aid, which are currently before parliament, will lead to many victims being unable to obtain help.
LAG understands that the Procedure Regs will be the subject of at least three amendments when they are debated in the House of Lords this month. These include an amendment from Lady Scotland, the former Attorney General, on the qualifying conditions for victims of domestic violence to claim legal aid set out in Procedure Regs s33.
Dangerous situations for domestic violence survivors
According to Ruth Tweedale, senior legal officer with the campaign group Rights of Women (RoW): ‘These regulations will leave adult and child survivors of domestic violence in dangerous situations, for example, where the abusive parent wants contact.’ She argues that family court proceedings ‘are vital in providing a proper assessment and management of perpetrator risk to ensure the safety of women and children’.
Ruth Tweedale says that a major fault in the regulations is that to qualify for legal aid a victim of domestic violence is required to have reported incidents of abuse to the police or other statutory agency. She points out that most people do not do this and ‘even where a woman has reported to a statutory agency, acquiring the appropriate evidence is likely to prove difficult, given that most survivors of domestic violence are not routinely provided with documentary evidence’ of convictions and other legal proceedings which involve a finding that there has been an incidence of domestic violence.
Cost of obtaining medical evidence
Both RoW and solicitors specialising in family law cases are particularly concerned about the difficulties victims will experience in obtaining medical evidence, since the cost of this will not be covered by legal aid.
Wendy Hewstone has been a family law specialist in Southampton for nearly 30 years. She believes that many GPs will charge for the reports because they are not covered by their NHS contract. In addition, she says: ‘the precise requirements of the medical report are not straightforward’ as the doctor or other health professional drafting the report has to confirm that s/he has no reason to believe that the injuries or condition were not caused by domestic violence. She argues that this ‘requires more analysis than just providing medical records would involve’.
Like RoW, Wendy Hewstone thinks that meeting many of the criteria to qualify for legal aid involves costs that cannot be met by clients – many of whom, she points out, are facing cuts in their benefits. For example, evidence of a conviction for an offence involving domestic violence can be used, but according to her: ‘a client may have never received a copy of a conviction or may have lost it’ and magistrates’ courts charge £60 for a replacement.
While low-income clients can use the fee exempt procedure, this requires them to complete a form and provide proof of income which must be no more than one month old. ‘For a victim of violence who has moved from her home, this will be practically impossible to do’, says Wendy Hewstone.
Opposition in the House of Lords
Speaking to LAG, Lord Bach, the former legal aid minister and Opposition Spokesperson on Justice, said that the proposed amendments to the Procedure Regs, including Lady Scotland’s (see above), are regret motions. This means that even if the amendments are approved by the House of Lords, they will not force the government to look again at the regulations. Lord Bach has proposed a motion that is critical of the government’s failure to bring back an amendment on the concession that was promised on complex welfare benefits cases (see January 2013 Legal Action 4). ‘We are not playing dead, but are trying to keep the pressure on the government to do the right thing and to think again about some of the most damaging aspects of this legislation,’ he said.
Solicitors and campaign groups, including LAG, are calling on the government to ensure that legal aid is made available to enable victims of domestic violence to provide the evidence necessary to meet the gateway qualifying criteria. In LAG’s view, a system of paying for medical reports and other disbursements would go some way towards achieving this.