Legal Aid (Women and Families)

Helen Grant Excerpts

Tuesday 24th January 2012 Westminster Hall

[Mr Sharma]

I thank my hon. Friend. Every hon. Member who has spoken has made a very good intervention. I agree with what he has said and am sure that everyone will have recognised and noted it.

I was referring to the speech delivered by Baroness Scotland. She is a practitioner of great experience and ability and is, of course, right.

I am fortunate enough to have the brilliant Southall Black Sisters in my constituency of Ealing, Southall. It is one of the UK’s leading organisations for black and minority ethnic women, and it told me that those women will be particularly hard hit by the Government’s plans. It said that

“the Legal Aid Bill will make it difficult for all vulnerable sections of society, especially BME women, to access justice and in doing so, remove meaningful legal protection from them and instead push them into community forums such as religious arbitration tribunals where not only will they be denied justice and protection but they will be encouraged to reconcile with abusive partners in order to uphold so called religious and family values. Women who have experienced and are at risk of violence and abuse will be at further risk of domestic and sexual violence, sexual exploitation and forced labour.”

It has been widely reported as fact that women who have experienced domestic violence will still be eligible for legal aid in private family law proceedings, such as disputes concerning the care and upbringing of children, but that is simply not the case. Experts in the field have unanimously raised the concern that too many women who have experienced domestic violence and need help will fall through the gaps in the proposals.

[Mrs Helen Grant (Maidstone and The Weald) (Con)]

Does the hon. Gentleman agree that men are likely to be financially better off than women and therefore better able to pay for legal work privately and that women are more likely to be in non-unionised jobs?

[Mr Sharma]

I agree with every word that the hon. Lady has said. I am sure that the Minister will also take note of those points in his response.

Experts in the field cite two particular concerns. First, the definition of domestic violence currently used in the Legal Aid, Sentencing and Punishment of Offenders Bill is inconsistent with the cross-Government definition of domestic violence, which guides statutory agency practice and governs access to Government services. Importantly, the definition used in the Bill fails explicitly to refer to financial abuse and sexual violence, which are particularly insidious forms of domestic violence. It is not clear why the Bill uses a different definition of domestic violence, unless the purpose is to restrict the number of cases that will be deemed eligible for legal aid. Under the current proposals, many who are already known to be victims of domestic violence by other departments will not obtain the legal support that they need.

--- Later in debate ---

[Mr Djanogly]

The hon. Gentleman is avoiding the reality of the situation. In all except for fewer than five of those courts, the service is being transferred to other surrounding courts. I will write to him with the specific details because I do not have the numbers in front of me.

With that context in mind therefore, I will move on to the specific issue of the legal aid reforms. The £2 billion annual cost of legal aid, combined with the economic climate of the day, mean that hard choices must be made. It is essential that resources are focused on cases where legal aid is most needed—that is where people’s life or liberty are at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care.

As well as retaining legal aid for criminal cases, we are also keeping legal aid for mental health matters, asylum matters, debt and housing matters where someone’s home is at risk and legal aid for judicial reviews of public authorities. All of those are directly relevant to family welfare. That means that we are retaining legal aid to seek an injunction to prevent domestic violence and to oppose a child being taken into care. We are also retaining legal aid for private law family cases where domestic violence is a feature. We will also be keeping and extending legal aid for family mediation. The power to waive the financial eligibility limits in cases where someone is seeking an injunction against domestic violence also remains, so those who need help securing protection will be able to get it.

[Mrs Grant]

Does the Minister agree that excluding undertakings from the domestic violence gateway could have the perverse effect of encouraging litigation, thus potentially increasing costs?

[Mr Djanogly]

As I said in Committee, the Government are looking at the question of undertakings and that continues to be our position. We hope to come forward with that as the Bill progresses through the other place. If I am to say very much more, I will not be able to take any further interventions.

We are also retaining legal aid for all child parties in family cases, and of course exceptional funding will be available in any out-of-scope case where a failure to provide legal aid might breach the European convention on human rights or EU law. Taken together, we expect such provisions to mean that we will continue to spend around £120 million a year on private family law legal aid, based on 2009-10 figures. When we include legal aid for public family law matters, spending will well exceed £400 million, again based on 2009-10. We will continue to spend nearly £130 million a year on legal representation for child parties. That represents around 95% of current spend.

I accept that women and children will often be directly and indirectly affected by private family law proceedings, but, as I have said in the past, we have had to make tough choices here. We cannot afford to fund generally lengthy and often intractable disputes in the family courts. However, we know that mediation can lead to better results that are consensually and less acrimoniously agreed and that are potentially longer-lasting than those imposed by a court. We expect an extra 10,000 mediations a year, which is up from the current figure of around 15,000.

Mediation will not always be appropriate, however, particularly when domestic violence is involved. We know that it can have a devastating effect on women and children, as well as men, who are a significant and often overlooked group of domestic violence victims. Domestic violence is also a significant predictor of children being taken into care as well as a precursor to all sorts of other social problems. On top of that, we also know that perpetrators of domestic violence can assert a controlling, insidious power over their victims, which could potentially stop a victim from effectively presenting their case against the perpetrator in court. On those points, I agree with the hon. Member for Ealing, Southall and with Baroness Scotland. However, the hon. Gentleman’s example of a woman who would not get legal aid after running from an abusive husband is not accurate. That sort of case would get legal aid. When a person is convicted of domestic violence against a partner, the partner will be eligible, as conviction would count as evidence. That is why we have made a large, and extremely important, exception in our proposal to remove most private family legal aid from scope of our reforms—that is where domestic violence is a feature.

There has been much debate about the definition of domestic abuse in the Bill and the fact that we do not use the definition of the Association of Chief Police Officers. We are considering that as the matter proceeds through the other place.

There has also been much focus on the evidence criteria for domestic violence to qualify for legal aid in private family law cases. We need clear, objective evidence of domestic violence to target taxpayers’ money on cases where the victim needs assistance. The allegation, which has again been made today, is that the Government’s criteria will miss a great number of genuine victims, and various pieces of evidence have been adduced to support this, and we will continue to look at them. They include the evidence provided by Southall Black Sisters, who have made a significant contribution to the whole case.

Those pieces of evidence refer to domestic violence victims as a whole and point out their difficulties in dealing with the civil or criminal justice systems. We are dealing with a subset of that group—those who are seeking private family law legal aid. They will have, in certain respects, slightly different characteristics to domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number, nearly 10,000 in 2009-10, will be seeking civil legal aid for a protective injunction at the same time as they seek legal aid for their private family law matter. They will all meet the evidential criteria. We know that in total there were 70,000 legal aid family cases in 2009-10. Let me compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010, the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to Multi-Agency Risk Assessment Conferences in the 12 months up to June 2010.

We also propose that an ongoing criminal proceeding for domestic violence and a finding of fact in the courts will be taken as evidence. Now these figures will clearly overlap to some degree, but what they point to is that a significant proportion of those 70,000 private family law cases that we currently fund will continue to be funded. We think that this proportion will be around 25%, which matches our rough estimate of the prevalence of domestic violence. I should also say, though, that this comes from a number of sources, and definitive evidence is not available.

I have also committed to look again at whether the issue of undertakings in a court can be used as evidence. We are clear about the need to ensure that those who are victims of domestic violence and need legal aid can access it and these requirements are designed to enable that.

Turning to legal aid for children, we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.

I should highlight that in civil cases, such as clinical negligence, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend”, rather than the child themselves. That is a normal part of the rules around civil litigation. As I mentioned earlier, there will also be an exceptional funding scheme for cases where legal aid will not generally be available, which will take into account a person’s ability to represent themselves in legal proceedings where the European Court of Human Rights applies. That will clearly be an important factor in the case of children who might otherwise be left to present their case without assistance.

It is worth noting that the Government published an equality impact assessment, which laid out our assessment of the effects on women of planned changes to legal aid. It recognised the potential for the reforms to have an impact on women and children, but in the context of the cuts that need to be made, and the deliberate focus of legal aid on those who are most vulnerable and in need, we do not believe that this impact is disproportionate.

I do not pretend that the choices we have had to make will have no impact, but they needed to be made.