Bach Commission Final Report on Access to Justice

Rights of Women has continually highlighted the many problems that have weakened access to justice since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), citing evidence and examples of the difficult and often dangerous position it has created for survivors of violence against women and girls (VAWG). Our work with our women beneficiaries has repeatedly demonstrated the problems they face when they seek the support from the law that they deserve – in particular when they apply for legal aid. We submitted our concerns to the Bach Commission inquiry panel in April 2016 alongside more than 100 other organisations and individuals and have been keen to hear the Commission’s views and recommendations on all the evidence they received.

We welcome the Bach Commission’s final reportThe Right to Justice’ (published on 22nd September 2017) on access to justice and are hopeful that the recommendations will inform and influence thinking around this important issue, particularly during the upcoming review of the key piece of legislation that has impacted on this area, LASPO. In our view, the report offers a thorough analysis on current provisions and provides carefully considered suggestions on ways forward. We welcome the effort that has been made to embed recommendations within an approach that robustly addresses financial implications. It is crucial that law and policy makers understand that one of the many benefits of widening access to justice is that it is ultimately more cost-effective than an unfair or unequal system that shifts the financial burden to elsewhere in the system.

We are heartened to see the report has recognised and addressed the issues we raised in our detailed submission to the Bach Commission. Our response to the report’s recommendations are as follows:

Widening the scope of funded legal representation

The report has made detailed recommendations about bringing back into scope all law involving children, certain cases under family law and suggests a review to determine which cases should be brought back in under immigration law. It argues that the determination of its choices is based on firmly upholding the principle of the right to justice in consideration of the nature of the issue and the parties involved.

We fully support the thinking that is behind this as it echoes the need we see as a frontline organisation. Furthermore we recognise that a fundamental tenet of access to justice is to enable a level playing field where an individual’s income should not preclude them from justice or disadvantage them in comparison to any other party.

In relation to the question of which immigration cases should be brought back into scope, we favour reinstatement of legal representation in all immigration cases. This is because these cases will almost exclusively relate to fundamental rights – either protected by human rights law or the European Treaties. Further, appellants in the immigration tribunal are not engaged in litigation against a private party but rather challenging a decision taken by the state regarding their fundamental rights in a context where the state will be legally represented. Ensuring the ability of individuals to question decision making and hold the state to account is an essential check and balance that ultimately creates a stronger and fairer legal system for all.

Means test for civil legal aid

The report recognises that the current system has numerous inconsistencies and excludes many who ‘are not in a position to pay significant legal expenses’. Our submission provided case studies that demonstrate how problematic the rationale underpinning income assessment, capital assessments and contributions are and the repercussions this has for ‘low-income’ women who are not eligible for full financial support for legal costs. The report has addressed each of these in detail and makes sensible recommendations for a simpler and more generous system based on calculations that are fair and realistic.

If these changes were enacted it would go a long way towards addressing the justice gap that has opened under the current provisions. Frequently women survivors we support are effectively put at further risk due to high costs with possible outcomes for them including: having to face a violent ex-partner in court alone without representation; being left with no disposable income on which to survive day to day; needing to sell their house and effectively making themselves (and potentially their children) homeless in order to pay for help; being deterred from applying for a non-molestation order due to unreasonable contributions. It is unacceptable that any woman in an abusive relationship should find it impossible to prioritise her safety when faced with these choices.

Exceptional Case Funding System

The report calls for an urgent review and reform of the Exceptional Case Funding (ECF) system because it has manifestly failed to deliver the safety net it promised to those who are ineligible for legal aid but at risk of human rights violations.

This is an area of high concern to Rights of Women and we fully support this proposal. Calls to our advice lines have demonstrated the unnecessary barriers women are facing when seeking to obtain ECF. As a result, we are now providing direct support to a limited number of women to make applications in immigration and family law cases so we can monitor how the system is working. We will be making further policy recommendations in the future about the ECF system from the evidence base of this work that can contribute to the vision of a better system.

Domestic Violence Legal Aid Gateway (Family Law) – Evidence requirements

Our submission drew attention to the difficulties women face when evidencing domestic violence in order to obtain legal aid in family law cases. Survivors of domestic violence are entitled to legal aid under LASPO’s regulations. However, in practice our research showed around 40% of women survivors could not access this support either due to being unable to satisfy the narrow list of acceptable forms of evidence or as a result of the arbitrary time-limit placed on that evidence.

At the point of our submission last April we had just been successful in a legal challenge against the Government relating to the domestic violence gateway, which resulted in the time-limit being deemed as unlawful and a requirement being placed on the Government to add a form of evidence to the list that would enable survivors of financial abuse to evidence their situation. The Ministry of Justice had announced they would be undertaking a review to inform changing the regulations and introduced some minor changes in the interim. This review has now taken place, however at the time of writing, any longer-term changes resulting from this review are yet to come into force.

We note the Bach Report highlights the restrictive nature of the gateway as a key issue that still needs to be resolved urgently. We welcome the prioritisation of this issue and urge Government to address the matter swiftly and thoroughly.

Early legal help

The report makes a pressing case for the return of early legal help (i.e. legal aid for initial advice prior to legal representation) which LASPO removed across a number of legal areas by taking them out of scope. We have always argued that this was likely to be counter-productive in terms of cost saving as inevitably investing in the early resolution of cases, particularly in family law, avoids lengthy, costly disputes. By avoiding such disputes and the potentially damaging impact on the parties involved, further costs to the public purse in other areas of state provision (health, employment etc.) can also be averted alongside the wider cost borne by society.

Education, information and advice

Rights of Women commends the weight the report places on the need to recognise the value of independent advice organisations and to ring-fence central funds to ensure their longevity. The important role of organisations like ours is frequently side-lined despite the vital role we play in ensuring women are aware of their rights in the law and how to access them. As a result of the loss of investment in our sector, more than half of these organisations in the UK have been lost over the past decade. We hope the recommendations on how to support the voluntary and community sector spark a meaningful debate and spur action on this front.

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‘The legal landscape for women and challenges ahead’

We wish to thank to all those who attended our Annual General Meeting at Resource for London on Wednesday 6th September and made it such a success.

ROW AGM 2017

 

We are particularly grateful to our panel of speakers who spoke on the subject of ‘The legal landscape for women and challenges ahead’. Their observations on the culture change that needs to occur to end violence against women and how the law is and can be central to this stimulated a positive debate during the question and answer session after they spoke.

Our summary of their speeches are below:

Jenny Beck (Family law solicitor, ROW advisory board member and also Chair of the Law Society’s Access to Justice Committee, Co-chair of the Legal Aid Practitioners Group) spoke about ROW’s successful legal challenge of the domestic violence (DV) legal aid gateway in 2016 and our hopes for what changes will come from the subsequent review of the regulations. She reminded the audience of how the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) had changed the legal landscape immeasurably by taking so many areas of law out of scope suddenly and how this had impacted on women in particular. She outlined the difficulties around the gateway regulations that women have faced when trying to meet the strict evidence criteria from external sources to prove they have faced DV. She explained how hard the evidence criteria were to meet particularly where financial abuse or coercive control has occurred. One of the detrimental impacts on women survivors when being confronted with such a list is a sense that their word is not enough and that they can only be believed if a third party can confirm it. She explained that therefore one of the hurdles that any new regulations needs to address is to ensure it reflects the reality of women’s experience and does not exclude some types of abuse or further a culture of disbelief otherwise women will not be afforded the proper protection they deserve.

Sarah Ricca (Centre for Women’s Justice) spoke about the newly formed Centre for Women’s Justice (CWJ). The CWJ has been formed to address the issue of violence against women (VAW) and intends to bring together experts, lawyers, activists and survivors to bring strategic law challenges and ensure access to justice for survivors of violence and abuse. Sarah outlined the extent of VAW in the UK – where 29% of women have experienced domestic violence or abuse – and explained that in comparison to other EU countries, the UK has the fourth highest rate. She highlighted strengths and weaknesses of the legal system to address this high prevalence through a series of examples, both historic and recent. The case examples demonstrated persistent gaps that can contribute to a cycle of impunity where perpetrators are not held to account. She spoke in depth about the fundamental need for the law to enable not only addressing failings after the event but also to enforce positive duties (on the state) that can effectively prevent failings occurring.

Katie Ghose (CEO – Women’s Aid) gave an overview of what the proposed new Domestic Abuse legislation, outlined in the Queen’s Speech earlier this year, is likely to address and what is needed to ensure it has a real impact for women. The Government has presented its vision for the new Bill and the accompanying non-legislative package as being able to make a positive contribution to culture change in relation to domestic and sexual violence and abuse. The Bill is expected to include: a definition of domestic abuse (as it is currently not defined in law); consolidation of the civil prevention and protection order regime related to domestic violence and abuse; new sentencing to reflect the detrimental long-term impact on children of witnessing or being involved in domestic violence or abuse; a new Commissioner to represent survivors and hold the justice system to account; and, measures to allow ratification of the Istanbul Convention. Katie spoke about women’s needs in relation to each area based on Women’s Aid’s experience and contact with women as a frontline organisation. She then outlined three crucial tests that Women’s Aid will therefore be using to measure the effectiveness of the proposed Bill; the areas where they want to see the Government deliver relate to women and children; ensuring routes to support and addressing the existing ‘postcode lottery’ that exists when accessing support services.

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Domestic violence injunction handbook

The Domestic violence injunction handbook is essential reading for all women considering applying for an injunction, and for professionals who offer advice and support to women experiencing domestic violence.

This extensive and detailed handbook enables women to obtain protection from violence and includes:

  • What type of injunctions are available
  • The law in relation to non-molestation orders and occupation orders
  • Who can apply
  • Preparing and making an application
  • Preparing for the hearing
  • Representing yourself in court
  • Enforcing the injunction
  • Information on harassment injunctions, forced marriage protection orders, female genital mutilation orders
  • Protection that may be available if domestic violence is reported to the police

The handbook includes example documents and helpful tips to guide women without lawyers through the application process.

Women who call our advice lines can request a free copy of Domestic violence injunctions handbook. Alternatively, you can purchase a copy for £10. Delivery will take up to 10 working days.

Click here to order a copy 

 

Domestic Violence Legal Aid changes welcomed as a ‘victory for women’s rights’

 The leading women’s legal charity Rights of Women welcomes the announcement from the Ministry of Justice today that it intends to reform legal aid rules affecting survivors of domestic violence.

 The announcement is a result of Rights of Women bringing a successful Judicial Review on appeal against the Government in 2016 that led to the Ministry of Justice (MOJ) reviewing the current rules.

The MOJ’s proposals include scrapping a time limit on evidence that meant survivors had to show they had suffered abuse within the past five years to be granted legal aid for advice and representation in disputed family court hearings.

Additionally the MOJ will widen the types of evidence that can be supplied to prove abuse has occurred to include statements from organisations working with domestic abuse victims, solicitors and housing organisations.

In its legal case, Rights of Women provided evidence that the rules (introduced under the Legal Aid, Sentencing and Punishment of offenders Act 2013) meant that 40% of female survivors could not meet the new legal aid domestic violence evidence requirements. Without legal aid for representation, survivors were forced to face their abusers in court themselves.

Estelle du Boulay, Director of Rights of Women said today:

“Rights of Women welcomes the announcement that unfair legal aid rules for survivors of, or those at risk of, domestic violence are finally to be replaced. This is both a victory for women and also for common sense. The purpose of Legal Aid is to ensure everyone in society can equally access safety and justice through the law. The current rules are so restrictive that they fail to assist a large number of victims – the majority of whom are women. Our evidence showed that up to 40% of women could not meet the requirements.

It is important not to forget however that we and others warned of these problems before the new rules were introduced. We are hopeful that these changes signal a renewed commitment from Government to address the broader landscape of domestic violence provision more proactively. It is of urgent importance that the Istanbul Convention is ratified in parliament tomorrow as this will commit the Government to a package of much-needed measures including refuge spaces and prevention work.”

Jenny Beck, Co-Chair of the Legal Aid Practitioners Group said today:

“This is a welcome announcement for everyone who believes in access to justice. The Government had committed to protect individuals and families at risk of domestic abuse and yet huge numbers of victims remain vulnerable under the current rules which are needlessly restrictive, confusing and bureaucratic. This sensible decision will enable efficient and targeted legal advice and representation to be given to those most in need. Costs, time, and most importantly, lives will be saved.  A sensible dialogue to understand the real picture at the coal face has allowed some joined up thinking here which will save both the tax payer and society in general.”

See further coverage:

https://www.theguardian.com/law/2017/feb/23/legal-aid-domestic-violence-law-courts

 

Immigration Bill receives royal assent

The Immigration Bill has received royal assent and is now officially the Immigration Act 2016.  Measures will be implemented over the coming months.

The Immigration Act 2016 includes provisions relating to:

  • criminal sanctions for illegal workers and employers
  • blocking access to services for unlawful migrants
  • ‘deport first, appeal later’
  • asylum support
  • detention of pregnant women
  • guidance on vulnerability
  • duty to children

To learn more about the provisions of the new Act see our information page here

New interim regulations for family law legal aid

In response to the judgment in our judicial review the Ministry of Justice has committed to undertaking a review of the regulations for family law legal aid and the impact of the domestic violence evidence. We are working closely with the Ministry of Justice to inform this review. Read Legal Aid Minister, Shailesh Vara’s statement of 21 April here.

In the meantime the Government has introduced interim regulations to deal with the two areas of concern highlighted by Lord Justice Longmore in his judgment of 18 February. The interim regulations can be found here.

Time limit on evidence of domestic violence

The interim regulations set a new, extended time limit on the forms of evidence of domestic violence from two years to five years. Most of the forms of evidence of domestic violence set out in the regulations will be considered by the LAA so long as the form of evidence is no more than five years old.

Evidence of financial abuse

From 25 April 2016 the Legal Aid Agency has discretion to consider forms of evidence of financial abuse not currently set out in the list of evidence. The guidance issued to LAA caseworkers can be found here (from paragraph 2.75). There is an evidence checklist which includes forms of evidence including bank statements, communications with the perpetrator (texts or emails), a letter from a domestic violence support service or a narrative statement from the survivor. In order to demonstrate financial abuse you should submit as much evidence as you can.

We will continue to update on further developments.

If you have any questions about your eligibility for family law legal aid, call our advice line.

If you have any evidence or experiences of the domestic violence evidence requirements which would inform the Ministry of Justice’s review please contact Emma or Mandip on 020 7251 6575.

Remembering Denise

 

At Rights of Women we were hugely saddened to hear about the death of our Patron, Denise Robertson, last week.

Denise became our Patron in 2010 as part of our 35th anniversary celebrations but before that she had a long association with Rights of Women, regularly signposting women to our legal advice services and helping us launch our publication, From A to Z: a woman’s guide to the law in 2007.

Her advice was a comfort to many, many thousands of women through her work on television and her website. Through that work she was aware of the inequalities that women experienced in their lives and felt passionately about wanting to change that. She felt the pain of the women who sought her help very keenly. At our 40th anniversary conference in October 2016 she said,

“In my 40 years as an agony aunt I have seen huge progress in the lives of women. We should be wrapped in clover. But we are not. In the family courts women are routinely left baffled. I have shed tears over some of the letters I’ve had.”

Denise had enormous compassion and tenacity. She would not stop until she had an answer to a woman’s problem. Despite her very busy life, she was also fiercely committed to Rights of Women and supported us in so many ways.

“You are not an organisation, you are a lifeline in a difficult and uncertain world. That is why I support Rights of Women.”

The thoughts of all our Trustees, staff and volunteers are with Denise’s family, friends and colleagues at this very sad time.

Our appeal: what does it mean in practice?

 

We are still waiting for the order in our appeal to be finalised by the Court of Appeal but in the meantime we can confirm what the decision means in practice for women applying for family law legal aid.

The two year time limit on evidence

The list of domestic violence evidence set out in the legal aid regulations is no longer subject to a 24 month time limit. Any of the forms of evidence on the current list should be accepted by the Legal Aid Agency without any time limit as to when it was obtained or when it arose.

Evidence of financial abuse

The Ministry of Justice must add a form or forms of evidence to the list of domestic violence evidence which will allow victim/survivors of financial abuse to apply for family law legal aid. We are working with them to look at what forms of evidence are realistically available for financial abuse and will update you as soon as we have more information.

In the meantime victim/survivors of financial abuse applying for family law legal aid should submit any evidence they are able to obtain to show they have experienced financial abuse and ask the Legal Aid Agency to accept it. If they refuse, their decision can be challenged and you should seek legal advice.

 

We will continue to update on further developments.

If you have any questions about your eligibility for family law legal aid, call our advice line.

 

Evidence tests for domestic violence are unlawful, says Court of Appeal

Our legal challenge of the domestic violence evidence requirements for family law legal aid has been successful. After an appeal hearing in the Court of Appeal on 28 January the two year time limit for evidence has been ruled unlawful and the Government required to amend the legal aid regulations to ensure that women experiencing financial abuse are able to access family law legal aid.

In his judgment handed down in the Court of Appeal this morning Lord Justice Longmore said “Legal aid is one of the hallmarks of a civilised society.”

“I would conclude that … regulation 33 does frustrate the purposes of LASPO in so far as it imposes a requirement that the verification of the domestic violence has to be dates within a period of 24 months before the application for legal aid and, indeed, insofar as it makes no provision for victims of financial abuse.”

Our Director Emma Scott says “For nearly three years we know that the strict evidence requirements for legal aid have cut too many women off from the very family law remedies that could keep them and their children safe. Today’s important judgment means that more women affected by violence will have access to advice and representation in the family courts.”

“The Court of Appeal has accepted our arguments that the fear of a perpetrator does not disappear after 2 years and recognised that forms of violence such as financial abuse are almost impossible for women to evidence. We look forward to working with the Ministry of Justice on amendments to the regulations to ensure that women affected by all forms of domestic violence are able to get legal aid.”

We would like to thank everyone who has supported us in so many ways during this case. Our heartfelt thanks go to our legal team, Sarah Clarke at Public Law Project and Natalie Lieven QC and Zoe Leventhal from Landmark Chambers and to all those who gave evidence in support of case. Our biggest thanks however go to the women who told their stories of the impact the domestic violence evidence requirements. Those stories have made a real difference to other women’s lives.

Read our press release here

Read more about our campaign here

Read the judgment here

40 per cent of women still unable to access family law legal aid

Today we publish further research which shows that still, nearly 3 years after the introduction of the new rules on legal aid, nearly 40% of women affected by domestic violence are unable to access family law legal aid because they do not have the required evidence to prove it.

On Thursday 28 January 2016 our appeal against the decision in our judicial review will be heard in the Court of Appeal. Our case challenges the legal aid regulations which set out the strict list of evidence criteria which is preventing women from receiving vital legal advice and representation in family law proceedings which can protect themselves and their children from further violence.

Emma Scott, Director of Rights of Women, said ‘The government acknowledges that domestic violence is ‘often hidden away behind closed doors, with the victim suffering in silence.’ More than three years on from the devastating cuts to legal aid and despite amendments to the rules, we know that those victims behind those doors do not have the required pieces of paper to prove they have experienced domestic violence.

Our research has consistently shown that nearly half of women affected by domestic violence do not have the required forms of evidence to apply for family law legal aid and that more than half of those women tell us that they take no legal action as a result. This leaves them at risk of further violence and even death. We continue this legal action on behalf of those women in order to hold the government to account on their promise to make family law legal aid available to victims of domestic violence.’

Read our research report here 

Read our press release about Thursday’s hearing here

Read more about our campaign and how you can get involved here

 
 
 

Contact us at:


Rights of Women,
52-54 Featherstone Street,
London, EC1Y 8RT.
Administration: 020 7251 6575
Email: info@row.org.uk