Legal Aid Cuts Punishing Disabled Families

The thought that goes into the needs of disabled litigants

Two cases reported in the past week relate to litigants-in-person lacking the ability to represent themselves in court, but under the current system, being unable to secure legal aid. 

People with specific learning difficulties have had problems in court for years, and prior to the legal aid cuts, many were failed by the system. What was an aberration, sadly, is now underpinned by feckless Government policy and a Ministry of Justice which is anything but. Such criticism also encompasses attempts by the Government to limit judicial review (can't have judges pointing out failings in Government policy), dismantling of legal aid in criminal law, and the Government's desire to abolish the Human Rights Act (human rights... where's the profit in that?).... and we could go on, and on, and on.... but back to this week's legal news.

The first case involved an illiterate mother, with poor sight and hearing, forced to represent herself in court over child arrangements. The gender isn't important, her disability is. Judge Hallam told the hearing:

“If legal aid is being refused to people such as this, I am satisfied that injustices will occur … Mothers in her situation should have proper and full access to the court with the assistance of legal advice.”

The second case reported this week is yet more concerning. Parents with special needs, and the father having an IQ of 50 and specific learning difficulties facing their children being removed from their care and placed for adoption (no doubt under the Government's equally poorly resourced "fast track" system). A care order existed, but with the children living at the parents' home under the order. Sadly, under such circumstances, when the Local Authority considers removal, non-means tested legal aid is not available, and the father is expected to pay for solicitor and counsel from his spare £73 a week. In my county, advocacy services for the disabled are being cut by 40%, along with other services. No doubt more disabled parents will struggle.

Grayling has already criticised the President of the Family Court for raising concerns that adoptions are being rushed through without alternatives being adequately explored.

Thankfully the judge at trial in this second case passed matters to the President of the Family Court for review, whose criticisms (couched in moderate language, but the equivalent of a small nuclear explosion in the Government's direction) included:

"Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable."

"...the parents were entitled to non- means, non-merits, tested legal aid when facing the proceedings under section 31, at a time when removal of their child was not the plan. Yet when they are now facing an application for the permanent removal of their child and his adoption they are denied legal aid. That, to use no stronger expression, is a decidedly curious consequence of the scheme embodied in Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. Some might suggest that it is irrational. No doubt it is some imperfection on my part, but I confess that I struggle to understand the policy or rationale underlying this part of the scheme.

Both the trial judge and President shared the conclusions that:

"A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child."

"The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.”  

I think it fair to say that if Sir James Munby, President of the Family Division of the Court, finds the Government's policy lacking in rationality, it's fair to say it's lacking in rationality. Thankfully, Sir James understands the rules of cricket, and goes on to explain them to Mr Grayling & Co(alition):

"It is, however, the responsibility – indeed, the duty – of the judges in the Family Court and the Family Division to ensure that proceedings before them are conducted justly and in a manner compliant with the requirements of Articles 6 and 8 of the Convention. That, after all, is what Parliament determined when it enacted section 6 of the Human Rights Act 1998, declaring, subject only to section 6(2), that it is “unlawful” for a court to act in a way which is incompatible with Articles 6 and 8."

Such a duty also falls on the shoulders of Government. It's no doubt an irritation to the Government that the Human Rights Act exists (they've said they want to abolish it), but even then, the United Nations Convention on the Rights of Persons with Disabilities still places obligations on Grayling and Co(alition).  Are you listening Mr Grayling? The answer to all such problems isn't that people should work for free... unless of course you're prepared to lead by example (anyone remember Hacker's Hair Shirt?). Again, money is found for all manner of things (MPs subsidised lunches for one). What most guarantees our respect in the world, our human rights record or our ability to bomb other countries. It would appear policy favours the latter.

No doubt Grayling will once again fluster and bluster at having been called out on his poorly thought out family/legal policy. Thank God we're not currently saddled with a weak President of the Family Court.

Helping someone through court proceedings who has a learning difficulty takes time and patience. It can't be rushed. It can't be done on a budget or a shoestring. Time spent getting a stressed litigant to articulate a chronology, their wishes, their plans and proposals is hard regardless of whether the litigant has communication difficulties... but in the event of disability, becomes a much greater challenge. That, Mr Grayling, is reality.

Next time Cameron thinks of 'moral duties' (he recently announced it was his 'moral duty to cut taxes') he should point his moral compass first at the disabled and their needs. Would it help if they were natural Conservative voters or better yet, party donors?

Sir James' judgment is repeated, in full, below, and thank heavens that one small bastion of our green and pleasant land remains within the toxic soup of Coalition policy:

Domestic Violence and Legal Aid - Dispelling Myths

A number of headlines are circulating at the moment and it is of concern that people may think legal aid isn't available to victims of domestic violence.

It is.

The Government ensured that legal aid for victims of domestic violence was protected from cuts. Howeverm they did require that a degree of evidence was required to support that allegations of domestic violence were genuine, and not being used as a means to get free legal support (for such things as custody battles).

There is a wide body of evidence which can be produced to help gain free legal assistance. This includes:

• 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.

It should be noted that the above criteria do not require concrete proof that domestic violence has happened in the past, simply evidence that it may have done.

It's important to remember that false allegations are a form of domestic violence too, and the Government has a duty to protect all victims.

The Government might have insisted that legal aid funding be recouped if allegations were found to be false, or unproven, but circumstances do exist where false allegations are prompted by anxiety or mental illness, and under those circumstances, financial penalties would be inappropriate. Campaign groups for domestic violence charities would inevitably argue that such penalties would act as barrier to genuine victims coming forward.

We deplore domestic violence against either gender or children, but in this instance, believe the Government struck the right balance. False allegations remain a significant part of family law proceedings, and the impact of such allegations can cause long term emotional and psychological harm (not to mention the implications to a child's development and wellbeing caused by needless investigations, manipulation to believe a parent might be dangerous when not and the cessation of contact when allegations are false).

On our site, we have a section providing information regarding help available to victims of DV, including information about non-molestation orders, occupation orders and undertakings, and organisations which can advise and support. This includes information to assist parents who do not qualify for legal aid and who need to apply to the court for protective orders.

Click on the image below to be taken to our family law app and Domestic Violence Support Menu:

We might also add we provide information to support those falsely accused, too:

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.