First some groundwork. The paper proposes that whilst the scope of legal aid will be shrunk, it will remain available for categories of work or in respect of classes of people the paper identifies as high priority or vulnerable respectively. The protected categories include cases centreing on allegations of abuse or assault of a person whilst in the care of a public body (eg care home sexual abuse cases), community care (eg provision of care for the elderly), debt cases where the individual's home is at immediate risk and Domestic Violence.
Applicants for non-molestation orders, occupation orders who are victims of DV will continue to be covered, as will victims of forced marriage. Domestic violence is not defined, and it is unclear whether or not they will continue to be covered where is no allegation of a risk of physical harm. The tenor of the section in question (from page 41) suggests not, as the relevant paragraphs are heavily caveated with the repeated use of 'where the victim is at risk of physical harm'. This would be a reduction in scope if correct.
At 4.67 the paper says that 'd.v. may also be an important element of certain ancillary relief cases and private law children and family cases', but that funding will not be routinely justified for this type of case. I am not sure how often that can be said to be true of ancillary relief cases bearing in mind the narrow judicial interpretation of s25(g) Matrimonial Causes Act 1973. However, it goes on to provide that the following cases will remain in scope 'where the client may be unable to assert their rights and may face intimidation because of risk of harm' (unclear what the situation is if the person at risk is a child):
- Ancillary relief or private children or family cases where the LSC is funding ongoing d.v. (or forced marriage) proceedings brought by the Applicant or has funded such proceedings within the last 12 months and an order was made arising from the same relationship
- similarly even if the proceedings within the last 12 months were not publicly funded
- where there is a non-mol, occupation or force marriage protection order or other injunctive order in place against the partner
- where the partner has been convicted of a criminal offence concerning violence or abuse towards their family (excludes spent convictions)
From which a number of questions arise:
What of cases where no order is made in the d.v. proceedings, for example where non-molestation undertakings are given in place of an order? If the acceptance of an undertaking will potentially prevent an applicant parent from later obtaining public funding in respect of children matters there will be a powerful disincentive to 'ramp up' cases and to seek orders where undertakings would be more appropriate.
What of cases where no application for protection has been made, but where allegations of domestic violence emerge in response to an application for contact or residence from the violent ex? Such a victim of d.v. would have to attend court unrepresented and raise such allegations where previous they have been unable through fear to make an application for injunctive protection.
What if an applicant is not sure whether their partner has criminal convictions for violence or abuse towards their family? Access to this kind of information is not available prior to attending court and obtaining disclosure via CAFCASS or other mechanism.
What if a partner has been convicted of a criminal offence concerning violence towards persons other than family members?
What of cases where non-molestation proceedings have not been brought and where there is no ongoing risk of physical violence - because for example the parties are separated and the victim has moved to an address unknown or at distance and there is no ongoing contact between partner and child, but where it will be necessary for the court within children proceedings to determine allegations of historic domestic violence in order to assess the risk of violence or abusive behaviour towards a child or which he might be exposed to by witnessing in the future?
What of cases where it is alleged that there has been no actual violence but a general deterioration in presentation and behaviour, for example because of substance abuse or mental health difficulties such that a person is in fear of escalation and possible violence?
What of cases of domestic abuse (note, the green paper refers to domestic violence) where the abuse is verbal, emotional or sexual, or by means of financial control?
On the one hand these proposals look to me as if they will not greatly reduce the number of cases which fall within scope - the bulk will probably tick one box or other. But they will encourage more applications for non-molestation orders, which alleged perpetrators are almost never funded for, they will encourage the seeking of orders and rejection of undertakings, and they will potentially leave a significant minority of victims of domestic violence faced with responding to children proceedings alone and without legal advice or representation. And whilst there will be more administrative costs associated with more complex scope arrangements, I am not sure that as currently set out in the green paper these provisions will be subtle enough to satisfactorily protect all those at risk.
Next: Family mediation in private law family cases
Postscript: I have now posted a further entry on the section dealing with family mediation in private law family cases. It contains some further thoughts on the question of domestic violence which is (as I should frankly have predicted) rather more indivisible from discussion on private family law cases than my planned sequential posts will allow.