I've noticed another teensy glitch in the grand plans to save money through what has now become fondly known as "the LASPO car crash". And it's this:
Respondents to non-molestation orders (harassment / domestic violence injunctions) rarely qualify for legal aid. The rationale is that such use of public funds is not justifiable where they can simply attend court as a litigant in person and offer an undertaking (a solemn promise to the court not to behave in a particular way, which is punishable by imprisonment and can stand in the stead of an non-molestation order).
The Legal Services Commission Decision Making Guidance says in respect of Respondents:
11. Legal Representation to defend domestic violence injunction proceedings will also be considered under section 11.10 of the Code. However, prospects of success and cost benefit criteria are unlikelyto be satisfied by a respondent to non molestation proceedings only, unless there are very serious allegations which are denied wholly or substantially. An exception is where there is any question of inability to defend for example because of mental incapacity or age, in which case a grant is likely to be justified. When considering cost benefit, the impact on the client of the order sought will always be taken into account, including any impact on contact or other related family proceedings. However in all cases the client will still need to demonstrate at least borderline prospects of wholly or substantially rebutting the allegations made.
12. In cases where the allegations are less serious or are admitted to a significant extent the main issue may well be whether the respondent should give an undertaking to the court and what form that undertaking should take. Legal Representation is unlikely to be granted in such cases but see paragraph 20.10 regarding the use of Legal Help (which can escape the application of a standard fee).
As to which I observe that in my experience paragraph 12 appears in practice to operate to cover almost all cases, not just those involving less serious or admitted allegations. It should be said that in cases where an occupation order is sought and a Respondent is liable to lose his home funding for representation is more often granted.
The offer of an undertaking will only result in the conclusion of the case where it is accepted by the Applicant. An Applicant who insists on her order will be entitled to a determination. Remember this, it is important.
So, all of this works pretty well in many cases, less so in cases where for one reason or another an undertaking is not appropriate (for example because there is a need to equip the police with a specific power of arrest in case of any breach, or the need to back an order with criminal penalties if breached as an effective deterrent), where a litigant in person is left struggling with the evidence gathering process and may end up making a ham-fisted attempt to cross examine the ex s/he has (allegedly) previously abused, which is potentially traumatic for the victim or wrongly accused, and unsatisfactory for everyone.
Post LASPO the Applicant for a non-molestation order will be disinclined to accept an undertaking because if she does she will not qualify for legal aid in any children act proceedings (unless she is able to obtain some other "objective evidence" of the domestic violence):
"Undertakings are not in themselves sufficiently clear, objective evidence of domestic violence and, for that reason, we have decided that they should not be accepted for this purpose." says the government in it's response to the Justice Select Committee. This is not a new point, but one example of it's discussion can be found in the shape of an article in The Guardian by Jon Robins last week: U-turn gives legal aid to victims of psychological domestic violence (although the last sentence, which suggests that: "violent wife-beaters can give an undertaking in court and effectively deny their victim access to legal aid" is not strictly accurate - remember that thing I told you was important? That. The applicant may, in effect, veto the use of an undertaking, but the respondent cannot veto the applicant's right to a hearing on her application - although in less serious cases a judge may be reluctant to list for a contest if an undertaking is a plainly satisfactory solution to the problem at hand, and may apply a certain amount of pressure on the parties to settle a case in this way).
Currently, the justification for refusal to fund Respondents to non-mols is a pragmatic one rather than a principled one - no funding required because a contested hearing can be avoided through undertakings. The existing guidance already contains sufficient safeguards to significantly restrict the number of publicly funded respondents, so what justification is there for an outright bar on public funding for respondents, even in those cases where the allegations are very serious or where there are issues of capacity? In future NO Respondents to such applications will be eligible for funding, even though there is likely to be a significant upturn in the proportion of cases in which a contest becomes necessary, and consequently the number of cases in which findings of domestic violence are sought and made.
I know it is stating the obvious to point out that this seems to run contrary to the interests of justice and to cut across article 6, as if this were the only such shocking or surprising instance. It is of course only one of many glaringly awful scenarios that the man and woman on the clapham omnibus will be having to face in future. I'm just struck by how this example demonstrates unavoidably how unprincipled are the proposals in family cases, which appear to secure access to justice for alleged victims of domestic violence and to deny it to those who are said to be perpetrators (and to those fortunate enough not to have got caught up in domestic violence).
I haven't yet seen any discussion of whether the LASPO proposals as they stand may be indirectly discriminatory, and it would take a lawyer with greater expertise in the field of discrimination than my own to properly analyse this, but...an argument might begin something like this:
The government talks a lot about zero tolerance of domestic violence against women and girls, but one can only assume that if asked they would say "Oh but yes of course, we also meant to refer to male victims - oops, slip of the tongue". Routinely implying that domestic violence is always perpetrated by men on women demonstrates laziness and undermines the apparent sincerity on such important matters.
However, it remains the case that most often respondents to non-mol applications are male (no funding) and most often respondents to allegations of domestic violence in children cases are male (no funding) (Incidentally, I don't know if the proportion of d.v. by gender is similar to the proportion of applications for protection by gender, but I have a hunch that a lower proportion of the d.v. that is carried out against male victims finds its way to the family courts than for women, for a range of cultural / social reasons). In both instances the applicant, most likely a woman, will be female and in receipt of public funding (as long as she has got her objective evidence, which she can be confident of obtaining since she has the advantage of a lawyer to cross examine her litigant in person ex and to argue her case). It seems to me that this differential treatment of alleged victim as compared to alleged perpetrator is likely to disproportionately disadvantage men (the government of course would have us all believe it disadvantages no-one at all, apart perhaps from a few cushty lawyers).
Note: This is poorly proof read, but I'm determined to get it up tonight. Apologies if syntax is wonky or garbled and punctuation is rather arbitrary.