Green Paper on Legal Aid Initial Observations #3: What About Enforcement?

See previous posts here and here.

At pa 4.14 it is said that the following are at the highest end of a spectrum of objective importance:

‘cases where the individual’s life is at stake, or they are at risk of serious physical harm. Also of high importance are cases where the individual’s liberty is at stake and cases where the individual faces intervention from the state in their family affairs, which may result in their children being removed from their care.’

So I wonder what the position will be in respect of enforcement of orders made under the children act? On the face of it these will be outwith the scope of public funding, unless the d.v. test is met. Committal obviously involves potential loss of liberty, and enforcement orders quasi criminal sanctions in the form of community punishment (unpaid work) – the seriousness of which is reflected by the fact that the amending sections of the act were drafted on the basis that the criminal standard of proof would apply. Surely public funding ought to be available for such matters? Often resistance to a contact order may be in the context of alleged domestic violence in which case funding may well be forthcoming for the respondent to the enforcement application if not the applicant, but what happens when a court has determined that allegations are not made out but the mother (it’s usually but not always the mother) continues to resist? No public funding for either party I think.

I wonder if we will get clarification on these issues prior to February when the consultation closes?

Green Paper on Legal Aid Initial Observations #2: Family mediation in private law family cases

This should be read in conjunction with my earlier post on the Green Paper as it relates to domestic violence.

It is said at 4.69 of the paper that wherever possible, it would be in the best interest of those involved in private law family cases which do not involve domestic violence to take a more direct role in their resolution, using mediation and keeping court proceedings to the minimum necessary. Legal aid will no longer be routinely available for such cases.

Legal aid will be retained for mediation in private law family cases, including private law children and family proceedings and ancillary relief. This will apply to cases without d.v. but even where d.v. is present family mediation will be offered.

A fixed amount of legal help (£150) will be available also to assist with advice during mediation and immediately following to formalise and give legal effect to any agreement reached.

In the words of Bugs, That’s it folks! I venture to suggest that £150 will go only a short distance towards drafting a consent order in AR, and towards preparing the necessary forms and applications for such order to be approved. That is always assuming of course that the parties have been able as Litigants in Person to sort out their own Decrees, from which the power to make such a consent order derives.

It is unclear what is proposed where parties have agreed matters relating to children but their agreement breaks down. Are they expected to go back to mediation again (and again) at this juncture or to go to court unrepresented? My reading of the green paper certainly suggests that in cases of persistent inability or refusal to co-parent there will be no assistance from the state to resort to the courts (except in those cases falling into the d.v. category as per my previous post).

Thus, there appears to be no provision for legal aid for private children cases even where mediation has been tried in good faith and failed.

I am left wondering: what of those cases of implacable hostility (to contact or to ex), or of persistent bullying, aggression or unreasonableness, or of uncertain mental health?

There will be many resident parents whose ex-partners possess a number of these characteristics and who are faced with s8 proceedings for contact or residence unrepresented and without even the benefit of advice. I am not sure whether it is worse for the resident parent to be faced with a litigant in person ex partner or, where said ex is working, the lawyer acting on his instructions. It is in this context where it may be superficially attractive to raise allegations of domestic violence in order to secure representation.

Looking at the other side of the coin, there seems to  be no access to public funding for fathers (or mothers) seeking to maintain a relationship in the face of implacable hostility. Father’s rights groups may have something to say about the fact that there is now no access to justice for the unfortunate father who finds that his ex will not engage in mediation or will not honour agreements reached. It also appears to be the case that it will only be one side that will be funded in cases that involve d.v. (unless of course counter allegations are made, thereby bringing both parties within scope).

There is something unpalatable about the suggestion that funding in private law children cases ought only to be available for the ‘victim’ of domestic abuse. It is not always the case that orders are made in non-mol proceedings based upon findings of fact (and indeed the exception to the scope limitations extends to include non-mol cases yet to be determined). Often orders are not opposed (at present at any rate) and therefore, if relevant, it will fall to the s8 judge to determine any disputes of fact about violence or abuse. Why should she who makes the allegation secure funding where the alleged perpetrator does not, when she has yet to prove her case? If a victim of d.v. is vulnerable if unrepresented, is not a wrongly accused alleged perpetrator also vulnerable to injustice if unrepresented?

Green Paper on Legal Aid – Initial Observations #1: Domestic Violence

I’ve decided to post several shorter posts about the green paper on legal aid published yesterday. This one will deal with domestic violence.

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.