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Funding developments in private family law proceedings
22 Jan 2018
Funding developments in private family law proceedings
Eleri Griffiths of One Pump Court explores how the changes to legal aid in private family disputes can broaden access to justice for domestic violence victims and those seeking to protect children from abuse.
Eleri is a pupil in the Housing and Community Care and Immigration teams, having formerly handled specialist debt and housing cases at a prominent homelessness and housing charity and a social welfare legal firm. She will be available for instruction from 12 April 2018.
This month the Civil Legal Aid (Procedure)(Amendment) (No. 2) Regulations 2017 entered in force, relaxing the evidential requirements for supporting an application for legal aid funding in certain private family law disputes.
Civil legal aid funding is available for advice and representation in private family disputes to an individual who was or was at risk of being a victim of domestic violence within that relationship, or to protect a child from abuse from a perpetrator, who is someone other than the applicant.[i]
Such proceedings could relate to financial relief or dispute resolution, matters concerning children or the home. Protecting children from abuse cases will also include removal of father’s parental responsibility; termination of appointment of guardian; special guardianship orders and disclosure of child’s whereabouts or return of a child.[ii]
The difficulty for those seeking public funding is that applications in these matters must include written, objective evidence of the domestic violence or child abuse, or the risk of it.[iii] An applicant who could not provide such evidence and therefore not obtain public funding may, in the absence of an alternative funding arrangement, find themselves either facing the abuser in court or feel unable to bring or contest proceedings at all. In those instances, being unable to meet the evidential funding requirements can lead to access to justice for domestic violence victims or those protecting children at risk being denied.
The Procedural Regulations are amended from 8 January 2018 (and will apply to applications made after that date) so as to remove the requirement that certain evidence relates to the five (domestic violence cases) or two (child abuse cases) years immediately preceding the application. The existing lists of eligible supporting documents are repealed and replaced by new schedules from which an applicant can supply documentation in support of their application, also introducing new forms of evidence which can be used.[iv] The circumstances when funding may be withdrawn are also amended.
Evidence which was formerly but is no longer subject to the time limit includes a relevant police caution for a domestic violence or child abuse offence; relevant protective injunction (as redefined below) or Family Law Act undertaking[v]; letters from multi-agency risk assessment conference members or from health or support services; or evidence of abuse (which is not prescribed) relating to financial matters.[vi] In protection from child abuse cases, evidence of social services assessment of a child being at risk of abuse, or a protection plan is also no longer limited to being made within the 2 years preceding the application.
Significantly, before the amendments, a conviction for a relevant domestic violence or child abuse offence would suffice only if it was unspent or the perpetrator was convicted within the time-period specified above. Now, a relevant conviction for a domestic violence or child abuse offence will suffice regardless of when it was obtained, though funding obtained in reliance on a conviction may be withdrawn if it is subsequently quashed.[vii] Evidence of the perpetrator being arrested for a relevant domestic violence or child abuse offence, which does not need to be against the victim specifically, will also now suffice, though again it may be withdrawn if a charge is not brought or likely to be.[viii] Whether the perpetrator is granted bail or remanded in custody is therefore not an issue. Likewise, difficulties which the passage of time between arrest or charge and conviction, or meeting the higher standard of proof to secure a conviction in criminal proceedings might otherwise cause an applicant needing urgent assistance to deal with matters of children, accommodation or finance when leaving a violent relationship ought to be less problematic and allow victims safer escape from violent relationships.
This is significant departure from the position before the Rights of Women judicial review challenge in 2016, where the equivalent regulations imposing a two-year limit on certain verifying documents were quashed (subsequently replaced with the five-year limit). It is arguable however that the evidential difficulties discussed in those proceedings could equally apply to the five-year limit.[ix] For example, a perpetrator, who can bring custody or child arrangement order proceedings at any time, could do so after several years of either voluntarily (e.g. by leaving the area) or involuntarily (e.g. a prison sentence) distance from the victim or child. They could re-emerge long after a conviction has been spent or after a victim has exhausted relevant support services. It is unrealistic to expect a victim to have the time limited evidence required in those circumstances whether it is for two years or five. As Longmore LJ accepted in the Rights of Women litigation, an applicant who has fled violence will prioritise their own and their children’s safety. A victim will also often experience psychological trauma during and after enduring domestic violence from which it may take a long time to recover and deal with other issues.
The relaxed evidential burden appears to be part of a welcomed wider commitment towards assisting domestic violence victims. A consultation on improving access to social housing for victims of domestic abuse has recently ended and is under consideration.[x] Likewise, in early 2017 a review into a proposed ban on perpetrators of domestic violence from directly cross-examining their victims within the family court was announced, the then Minister for Courts and Justice explaining “I want to make family court processes safer for victims so they can themselves advocate effectively and for the safety of their children.” [xi]
Additional forms of evidence
An expert report from earlier proceedings, including a CAFCASS report, confirming the family relationship and risk posed by the perpetrator to the victim can now be used to support a funding application. Similarly, where the applicant has sought assistance from independent domestic violence support services, a public authority, or health professional, additional evidential options are now available from:
· The Secretary of State by letter confirming that the applicant has been granted indefinite leave to remain as a victim of domestic abuse.
· An independent domestic violence advisor, independent sexual violence advisor, or appropriate domestic violence support organisation.
· A local authority or housing association officer supporting a tenant. This could prove particularly useful as sourcing emergency accommodation, often by approaching a Local Authority for assistance under the Housing Act 1996 (as amended) provisions, may be one of the first opportunities for the violence to be documented.
· A public authority confirming that a person with whom the perpetrator was in a family relationship was assessed as being or at risk of being a victim of domestic violence by them. This was formerly limited to the social services department though now appears wider. It need not be a formal assessment therefore arguably an applicant fleeing violence who seeks housing assistance from a local authority under homelessness provisions may in some cases be able to rely on a homelessness decision made by the authority accepting the applicant homeless on that basis.
Health professional reports/letters
Finally, the requirement that a health professional has had access to the medical records of the applicant and has examined the applicant within the 5 years immediately preceding the application has been removed. An appropriate registered health professional who has examined the applicant in person, or can confirm that another appropriate professional has done so, may provide evidence, but rather than being satisfied following examination that the applicant has injuries or a condition consistent with those of a domestic violence victim, a reasonable professional judgment that they have such injuries or conditions will suffice. This includes doctors in Accident and Emergency facilities and the perpetrator does not need to be named.[xii] Alternatively, a health professional who has not examined the applicant but who has access to the applicant’s medical records and can confirm that a referral was made by an appropriate health care professional to a person providing specialist domestic violence support services Again, the referral need no longer have been within last 5 years.
Other than the amended health professionals evidence, there was no equivalent provision in the previous regulations in relation to these forms of evidence being sufficient. All should however be particularly useful for applicants where there has been no criminal investigation into the domestic violence, which may arise where the applicant fled violence and feared the possible repercussions arising from reporting it to police or obtaining an injunction. Whilst the ban on perpetrators cross-examining their victims addresses scenarios where the abuser is not legally represented, it provides no assistance to a victim in dealing with either preparing their own case, or being supported through the family law litigation process which occur outside the courtroom. That can only realistically be achieved through the provision of appropriate representation, which in turn requires a fair opportunity to access funding to obtain it.
Template letters for those seeking and providing evidence is available at https://www.gov.uk/government/collections/sample-letters-to-get-evidence-of-domestic-violence.
[i] LASPO 2012, Sch 1, paras 12 and 13
[ii] LASPO 2012, Sch 1, paras 12(9) and 13(1)
[iii] As set out in sections 33 and 34 of The Civil Legal Aid (Procedure)Regulations 2012 ( “the Procedure Regulations”)
[iv] The Civil Legal Aid (Procedure) (Amendment) (No.2) Regulations 2017 para 2(5).
[v] Under s46 or 63E Family Law Act 1996
[vi] A full list and updated guidance is available including evidence checklists are available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/672143/evidence-requirements-private-family-law-matters-guidance-version-8.pdf
[vii] Procedure Regulations Sch 1 paras 4 and 42(1)(k)(i)
[viii] Procedure Regulations Sch 1 para 1, sch 2(1) and para 42(1)(k)(v) and (vii)
[ix] R (Rights of Women) v Lord Chancellor  EWCA Civ 91
[x] Consultation documents are available at https://www.gov.uk/government/consultations/improving-access-to-social-housing-for-victims-of-domestic-abuse
[xi] Hansard HC 9 Jan 2017, Vol 619, Col 25
[xii] See vi at paras 2.42 and 2.46.