Monday, 6 January 2014

Abusing Legal Aid

In 2013 there was a hoo-hah. Victims of domestic violence were only to receive legal aid from April 2013 if there was evidence to support an application, introduced by The Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO). The list of evidence included:
  • an existing protective order or injunction in respect of the other party, against the applicant; 
  • an undertaking having been given by the other party in lieu of a protective order or injunction for the protection of the applicant;
  • a police caution for domestic violence against the applicant;
  • appropriate evidence of admission to a domestic violence refuge;
  • appropriate evidence from a social services department confirming the provision of services to the victim in relation to alleged domestic violence;
  • evidence from GPs;
  • a criminal conviction for domestic violence by the other party against the applicant;
  • evidence of a multi-agency risk assessment conference having been referred as at risk of domestic violence, with action recommended;
  • a finding of fact by the courts of domestic violence by the other party against the applicant.
The reason for this restriction was due to concerns that, with legal aid being otherwise abolished, the number of false allegations would skyrocket as the system was manipulated to achieve free legal representation.

False allegations are common in the courts. We all know it. We see it week in, week out. They may be due to parental anxiety or hostility. They may come from psychological problems and projection. When intentional and deliberate, the motives include the fast removal of an ex from a property... stopping contact for months... securing free legal representation... and punishment. Sometimes allegations are made for purely pragmatic (and somewhat sociopathic) reasons. The relationship is over... I want him/her out of my life completely.

Mrs Justice Parker reminded all us in December, in a judgment where the mother had alleged domestic violence, that not all allegations are genuine. She found that Social Services had uncritically accepted the mother's allegations and the mother had abused the children herself. She reminded people not to always believe claims of domestic violence and that sometimes parents rewrite history. She's a highly capable judge, and the surprise comes not from her saying this, but it being deemed so exceptional that the national papers reported it.

Should it surprise us that DV allegations aren't critically examined? Not at all. A culture exists where reports of allegations are treated as confirmed happenings (by both media and politicians... I've pointed to examples in other blog posts last year). There's an underlying current that questioning the authenticity of allegations causes abuse to the victim a second time. Such reasoning, and the low balance of proof required in the family courts lends itself to miscarriages of justice. Fact finding decisions are binary (the judge may only decide a matter did or did not happen... unproven is not an option) and the level of proof is that an allegation is more probable than not.

What prompted me to blog about this today?

I was speaking to a police officer today (a friend ...I hadn't been arrested!) who was telling me of another case where he'd been called out and it was clear to him that the call to the police had been tactical, and in his opinion motivated by the parents' up and coming 'custody case' as he called it. The father was removed, but no caution given, and there would be no prosecution. No violence had taken place.

Another call came tonight from a friend wishing me a belated Happy New Year. They happen to be a legal adviser, and were irritated by the number of ex-parte non-molestation orders being sought and granted in 2013. Sighing, they went on to explain that at the following on-notice hearings, the accused was encouraged to give an undertaking. In each of these non-mol cases, later on in proceedings, the non-molestation order was rescinded after findings of fact went in favour of the (falsely) accused. Their clear view was the system is being manipulated. Also that judges share suspicions, but feel obliged to order finding of fact hearings or else face judgments being appealed.

The bizarre situation arises that by making false allegations of domestic violence, the accuser ends up being the perpetrator, and is unwittingly assisted in this by the legal system. Not only this, the perpetrator is financially rewarded. If the (later rescinded) non-mol order didn't see them gain legal aid, the giving of an undertaking (even when a cross undertaking) saved them a few thousand pounds in legal costs. Does the court punish those who make false allegations? Very, very rarely - and Mrs Justice Parker is an exceptionally analytical judge. Is it a crime? Yes... it's contempt of court and fraud, but the court's rarely treat it so.

If the accused is advised by counsel for the other side or encouraged by the judge to give an undertaking (it implies no guilt but carries possible imprisonment for a breach), they unwittingly hand their accuser a cheque, made out by the Government, which pays for legal representation to reduce or eliminate their time in their children's lives. How's about that for a masterclass in vicious manipulation and coercive control.

When it was announced in September that despite the increased reported number of domestic violence allegations to the police, the proportion being sent to the Crown Prosecution Service had gone down. Papers and DV charities automatically reached the conclusion that the police were failing victims (despite reasons for the fall not being recorded). Note... with no evidence or analysis, there was the assumption that police were failing victims. Yvette Cooper blamed police cuts (with no evidence to support that the increase was in genuine victims). It is always possible that the police are analysing allegations where others aren't (even if such action isn't fashionable).

When the evidence based restrictions on awarding legal aid in DV cases were proposed, DV organisations opposed this. Arguments that there should be punishments for false allegations were also opposed. Narrow interest lobbying organisations influence Government, prepared to defend one group of victims at the expense of the other.

What about the victims created by false allegations, the impact on child welfare of unreasonably (in hindsight) stopped contact? What about the services diverted from real victims? What about the money drained from the public purse to support perpetrators in carrying out domestic violence (and fund their doing so via court proceedings)? Not only this, but the abuser ends up with expert support in court, while the victim often has none.

There is a solution. The binary nature of decision making in family law should be widened to include unproven. In instances where allegations are proven to be false (as opposed to unproven), a proportion of funding should be recovered from solicitors (an encouragement for a little analysis when their client approaches them with the allegation). Let the solicitor check the evidence themselves. I do not believe this is unfair, as we're speaking about professionals who should have this ability. Neither do I think it fair that the solicitor should repay all legal aid funds. They may also then pursue their client to recover the monies repaid to the public purse. The court should treat false allegations as a crime with punitive action taken (including community service and fines). Where false allegations are extreme, committal should be considered. Additionally, proven allegations of domestic violence should be treated as a crime, with more than an injunctive order to dissuade the proven abuser from repetition. Being a crime, the court should perhaps hear DV cases under the test of beyond all reasonable doubt (and base prosecution for false allegations against the same higher threshold test). DV, in all its forms, should be treated seriously (and include unreasonable breach of contact, the impact of which, I still feel is trivialised). Anyone complicit in fraudulent applications for legal aid should face criminal prosecution.

In December, the Guardian reported that DV charities and the legal profession are saying that fewer victims are coming forward because they cannot provide the evidence necessary to get legal aid. Before the state hands over thousands of pounds, of course there should be evidence, or in the absence, a mechanism of recovering the funds from people who fraudulently abuse the system for financial gain. Should the courts make injunctions against people where no evidence exists and the accused isn't present in court to defend themselves? No? But they do. Should the Government remove the ineffective evidence based criteria for securing legal aid? Arguably, they should strengthen the controls as the system is left open to abuse (as are the falsely accused who are also DV victims).

Sadly, with risks that the current legal aid system is being abused, the courts should be wary of asking people to give an undertaking, and similarly, people need to be cautious before signing an undertaking in respect of alleged DV. While an undertaking doesn't mean you accept guilt (or you've been found guilty) it does hand your ex-partner a fighting fund to remove your children from you, if that is their wish.