Oral Answers to Questions

Debate between Jonathan Djanogly and Sheila Gilmore

Tuesday 3rd July 2012 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

T5. Professor Harrington, the independent reviewer of the work capability assessment, has highlighted the fact that Department for Work and Pensions officials are not routinely given feedback when appellants’ appeals have been successful, which means that they cannot improve practice. Why not?

[Mr Djanogly]

There are costs involved in feedback, but that does not mean that the DWP cannot ask for feedback if it wants it. The efficiency of the tribunal processes is being looked at carefully, with Ministry of Justice officials and Ministers working closely with DWP equivalents.

Oral Answers to Questions

Debate between Jonathan Djanogly and Sheila Gilmore

Tuesday 8th November 2011 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

A few months ago, the Minister said that the backlog of appeals on social security matters would be resolved through the employment of more people. That was before the summer, but the waiting times seem to be as long as ever. Why is that?

[Mr Djanogly]

There is still a significant number of appeals, but the number is now being stabilised and the delays are being reduced.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Jonathan Djanogly and Sheila Gilmore

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

I expect the amendments to be generally well received.

The Bill currently refers to funding for advocacy being available in the first tier tribunal, and amendments 17 and 18 correct that position by making available funding for advocacy for appeals to the upper tribunal. Amendments 15 and 16 serve a similar purpose but in relation to sections 31 and 34 of the Criminal Justice and Court Services Act. Appeals under section 31 are to the Court of Appeal, rather than the first tier tribunal, and funding for advocacy for such appeals is already covered by paragraph 2 of part 3 of schedule 1. Appeals under section 34 are to the High Court, and funding for advocacy for such appeals is already covered by paragraph 3 of part 3 of schedule 1.

I now turn to the family and domestic violence amendments, almost all of which have been debated in Committee already. I would like to reiterate why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid, as it stands, is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary applications to carve up family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will, therefore, remain available for mediation in private law family cases, and we estimate that we will spend an extra £10 million a year on mediation, taking the total to £25 million a year.

[Sheila Gilmore (Edinburgh East) (Lab)]

Does the Minister not accept that in many cases where people are separating or divorcing, there is an imbalance of power, whether financial or emotional, and that mediation is simply not suitable for many such cases?

[Mr Djanogly]

I certainly accept that there will sometimes be an imbalance, and in relation to court proceedings themselves, we are proposing other measures—the ability for a judge to give interim orders, for instance—aimed at redressing that imbalance. However, I also accept the hon. Lady’s suggestion that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family law cases where there is evidence of domestic violence or where a child is at risk of abuse.

--- Later in debate ---

[Mr Djanogly]

Everything the Government have said, and every action we have taken, shows that we take domestic violence extremely seriously. To some extent, the hon. Lady and other hon. Members are approaching this issue from the wrong direction in that they begin by addressing domestic violence, but that is not the right starting point. The starting point for the Government is that we are removing legal aid for private family law, but we are keeping it for domestic violence, as that is of the utmost concern to us. My point, however, is that we need to have objective evidence of domestic violence so that we target taxpayers’ money on genuine cases where the victim needs assistance because they are intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings.

[Sheila Gilmore]

Will the Minister give way?

[Mr Djanogly]

I shall make a little more progress first.

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, they will be set out in regulations under clause 10. We believe it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation as it can be amended to respond to particular issues that may arise during the operation of the scheme.

In the consultation, we suggested what might be the forms of evidence of domestic violence, and we listened to the views expressed on that in response. As a result, we have widened the range of forms of evidence, and, furthermore, only one of the forms of evidence would be needed. Legal aid will be available for victims of domestic violence in private family law cases where one of the following criteria is met: where a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party is in place or has been made in the last 12 months; there is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent; there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to a risk of harm to the victim.

--- Later in debate ---

[Mr Djanogly]

That relates to amendment 74. I am going to deal with it and I am sure that my hon. Friend will be pleased with the answer I will give her.

Accepting self-reporting without objective evidence would prevent us from effectively focusing assistance on victims of domestic violence who were unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments refer to evidence from professionals in a variety of roles. I explained that we have widened our criteria so that legal aid will be available where the victim has been referred to a multi-agency risk-assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. Such referrals can be made by a range of professionals. Furthermore, a finding of fact in the family courts that domestic violence has occurred will trigger legal aid, and a court will be able to assess any relevant evidence.

Amendment 74, to which my hon. Friend referred, would prevent a time limit from applying to any evidence. We have said that a 12-month period, where relevant, will apply. We consider that 12 months will be an appropriate period to protect victims and to enable them to deal with their private family law issues. However, if the criteria were to arise again—for instance, if a second protective injunction is made—the time period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to the breach of an individual’s rights under the European convention on human rights, particularly article 6.

[Sheila Gilmore]

Will the Minister explain how the individual achieves the finding of fact in a family court in order to trigger legal aid if they cannot get legal aid to take proceedings in a family court?

[Mr Djanogly]

The answer is that they can get legal aid to take those proceedings.

Amendment 93 would provide for legal aid to be available for any party in a private family law case who has been the subject of allegations of domestic violence or the risk of domestic violence. We debated an identical amendment in Committee. In considering whether alleged perpetrators should receive legal aid in these cases it is important to remember that we are seeking to protect the most vulnerable in society. Alleged perpetrators would not necessarily fall into that category in the way a victim of abuse would. Furthermore, allegations would not meet the test of clear, objective evidence that would otherwise apply in these cases. Accepting such an amendment would be likely to cost tens of millions of pounds in savings, without achieving the objective of targeting legal aid on those most in need.

I turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. These are amendments to paragraph 11 of schedule 1, which provides for legal aid to be available in such cases for the party seeking to protect the child, where there is objective evidence of the risk of abuse. Again, identical or near-identical versions of the amendments were discussed in Committee.

Amendment 96 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in sub-paragraph 11 (1) of schedule 1. The list of orders in that sub-paragraph is intended to cover orders and procedures used to secure protection, and it includes orders under section 8 of the Children Act 1989, which may be used in that way, including contact and residence orders. The effect of amendment 96 would be that applications for maintenance or other financial provision for a child would be in scope whenever a contact or residence order has been made in relation to that child, regardless of any need for protection. The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases.

We have listened to the concerns raised during the consultation on this point. For example, one party might be seeking an order to bar an abuser from unsupervised contact with a child. We agree that child protection is of paramount importance and we recognise that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child requiring prompt and clear action. This is a separate rationale to a situation in which the adult has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser.

We do not consider that cases concerning financial provision are of equal priority and nor do they raise the same issues. Financial matters are of lower objective importance than child protection and we would not expect the protecting party to encounter the same level of complexity—still less risk—or need for urgent protective action in a case about financial provision. Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children.

Amendment 97 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such direction if it appears that it might be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary and, in any event, goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children.

Directions under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes because they relate to care and supervision orders under paragraph 1(1)(b) of schedule 1. Funding is therefore available in relation to section 37 issues. There is no reason, in principle, why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing.

Amendment 98 also references section 37 directions and would bring into scope any private family law proceedings that involve a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a broad proposition that I do not think can be justified.

Oral Answers to Questions

Debate between Jonathan Djanogly and Sheila Gilmore

Tuesday 15th February 2011 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

T8. Will the Minister reconsider his original thinking on the definition of domestic violence and the evidential requirement when deciding whether to make legal aid available in family law cases?

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I have to tell the hon. Lady that we have just consulted on this—the consultation ended yesterday—and that we will consider carefully what people have said. We put a definition of domestic violence in the Green Paper and we will look carefully at how people have commented on that.