[EDIT : Readers should take a look at the helpful (but depressing) comment from Steven Barratt regarding the way in which LASPO is being interpreted, along with my response. It seems that my idea is unlikely to work :-(]
I've been a mite negative about so-called Clare's Law (the domestic violence disclosure scheme), but it occurred to me today that it has an unforeseen utility. And it is this...
Applicants for legal aid in private family disputes need to provide evidence of domestic violence from a long but very specific list.
For all but one of the categories of permissible evidence there is a 2 year cut off, that is to say historic dv don't count. Not, of course, that 2 years and a day feels very "historic" for the victim, or indeed the child witness. But I digress.
So. There will be many people who have suffered domestic violence at the hands of the person now taking them to court about the kids or the house, and who have suffered it not so long ago, and who have evidence of that domestic violence - but who are nonetheless left out in the cold as far as state assistance for legal advice and representation is concerned. Because it's not quite fresh enough to trump austerity. Thank you LASPO. Gert lush.
Unless they are able to fit within Reg 33(2)(a) of the Civil Legal Aid (Procedure) Regulations 2012 by providing evidence of "a relevant unspent conviction for a domestic violence offence" that is.
Doesn't have to be a conviction for an offence against the applicant for legal aid.
Doesn't have to be a conviction in the last 2 years. It does have to be unspent, mind you but doesn't have to be in the last 2 years.
(Of course, if there is recent or ongoing behaviour they can apply for a non-mol and get in that way. But in such circumstances there is unlikely to be a 2 year problem.)
This is where Clare's Law comes in. A victim of domestic violence say, 3 years ago, needs legal representation to be able to deal with proceedings brought by his or her ex. No recent incidents, but that is because the violent partner has not known where they fled to, but its no less terrifying for the 3 year distance.
Chances are s/he may have relevant pre-cons. Chances are one of them might be unspent. Clare's Law potentially enables the victim to obtain that evidence and protect themselves from the vulnerability of being a litigant in person.
Yay. *Small Bristolian dance*. Not ideal. But an ideal.
Similarly I suppose, Sarah's law (same but for sex offenders) may assist the so-called "protective parent".
I'm certainly not encouraging fishing expeditions to get dirt on a former partner as a device to get legal aid. But in circumstances where there is a regulatory set up involving a vast amount of technical hoop jumping with sometimes arbitrary and concerning results, it is necessary and legitimate to assist people who ought to be eligible for help to obtain that help. Parliament intended for LASPO to catch victims of domestic violence. We know in practice some of them are falling through the net. And it is not beyond the bounds of possibility that a person who was violent three years ago was also violent five years ago, and got caught and convicted. Sadly repeat perpetrators do escape without convictions over many years and across multiple relationships, but it might help someone. One of the real difficulties with the LASPO evidence requirements is the need for victims themselves to obtain evidence. Clare's Law might help them access information they might otherwise struggle to get hold of. And although I haven't been able to access the up to date protocols for the scheme now it is nationally rolled out it must be right that one factor the police will consider when making a disclosure decision is that the applicant proposes to use the information to protect him/herself and their children through the seeking of court orders (or through resisting them).
Of course it doesn't assist at all with the elephant in the room which is the absence of legal aid AT ALL for those accused of domestic violence, some of whom of course are not guilty of such allegations.
But it is at least some small comfort to think that one daft ministerial ideal might unwittingly help to undo some of the injustice of stupid ministerial ideal (or do I mean idealology?).