“‘Women will die’ as legal aid becomes more difficult for victims of domestic abuse to get”

In recent months, domestic violence has never been far from the headlines, from reports on widespread police failures in handling cases to the closure of specialist refuges because of cuts. Most recently, the government announced a consultation on how the law could be strengthened by explicitly stating that domestic abuse covers coercive and controlling behaviour as well as physical harm.

This week it is on the agenda once again, with a fresh challenge to restrictions on legal aid for domestic abuse victims that were introduced 18 months ago as part of sweeping changes to the law and swingeing cuts to legal aid budgets.

On Monday, the Law Society held an Access to Justice day at which its new president, Andrew Caplen, launched a fresh push to persuade policymakers to revisit the Legal Aid, Sentencing and Punishment of Offender Act 2012 – or Laspo as it is known – and amend what he says are significant restrictions on the legal assistance now available to victims. “The ability to get legal aid for domestic violence is much tougher” in the wake of Laspo, he says. “It’s not that legal aid is not available, but it’s harder to get it.”

Caplen plans to make domestic abuse a priority for the Law Society over the next year and, if possible, help to remove some of the obstacles to legal aid.

The reasons that victims of abuse might need legal aid are manifold, ranging from child contact issues – say where children have remained with a partner after a mother has fled violence – to applying for an injunction against a perpetrator. After Laspo and the regulations that accompanied it, civil legal aid advice and representation was no longer routinely available for a range of cases.

The law, which came into force across England and Wales in April 2013, removed almost all private family law areas from the scope of civil legal aid. Domestic violence was named as an exception, but only under specific circumstances or with strict “evidential” eligibility requirements and a slew of conditions attached – something campaigners have argued puts onerous obstacles in the way of access to justice for the poorest and most vulnerable victims.

Campaigners and lawyers have also warned that with more than £300m to be wiped off the total civil legal aid budget by 2014-15 it would mean fewer experts for victims to turn to. The bill had a tortuous passage through parliament with peers refusing to pass it multiple times – and even when it did get through, it was with numerous amendments.

Yet a number of major hurdles remain, say campaigners, such as the requirement that victims produce mandated “evidence” that they have been domestically abused. The list of approved evidence includes a letter from a GP, time spent at a refuge or proof that a place was needed but none was available, and verification that an abusive partner has a conviction or is on bail. Caplen points to a number of serious problems with these “evidential requirements”, such as that victims of domestic violence frequently don’t report their abuse due to shame or fear, meaning documentation such as a letter from a GP proving their abuse is simply impossible to get. He points to research carried out by Rights of Women, Women’s Aid and Women’s Aid Wales a year after Laspo was introduced, which found that 43% of victims reported not having the prescribed documentation required to successfully apply for legal aid – meaning they couldn’t even get to the first stage of meeting with a solicitor.

Despite non-physical abuse being included in the definition of domestic violence, it is almost impossible to prove psychological abuse, as there is unlikely to be any documentary proof that would meet the evidence requirements, says Caplen.

Another significant obstacle is that those who have experienced abuse must prove it took place within 24 months of making a legal aid application. Given that many victims sometimes take years to come forward, imposing such an arbitrary limit shows a fundamental lack of understanding of the nature of domestic violence and of coercion and control over an extended time period, says Polly Neate, chief executive of Women’s Aid.

Emma Scott, director of Rights of Women, describes Laspo as a “fundamental attack on the rule of law”. “There are women who tell us that without [access to] legal aid they are staying in abusive relationships. It is not over-dramatic to say that women will die,” she says.

She points to some of the findings of a post-Laspo survey in which 46% of respondents took no action as a result of not being able to apply for legal aid while 25% represented themselves in court and almost a third paid a solicitor out of their own pocket. “We have found that victims are borrowing money and going into debt [to get legal help],” she adds. She is critical too of the “exceptional funding” scheme put in place by the Ministry of Justice (MoJ) when Laspo was enacted that was supposed to help people most in need. The scheme has come in for considerable criticism because the application process is extremely complex and there has been a miniscule success rate of applications. Scott concludes: “It is simply not the safety net the government said it would be.”

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