by Abi Harindra
The drastic cuts to legal aid have disproportionately affected women and denied huge numbers of women access to legal representation in family law proceedings. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed the availability of legal aid in private family disputes, including disputes between separating parents over children and finances. There are exceptions to this, however, which include applicants who are, or are at risk of being, victims of domestic violence. Nonetheless, proving the domestic violence exception is far from straightforward, and according to a 2015 Women’s Aid study, 39% of women affected by domestic violence are unable to provide the necessary evidence. Examples of evidence required include a conviction or caution for a domestic violence offence, a finding of fact in court proceedings that there has been domestic violence, or a letter from a health care professional confirming they are satisfied the victim has been or is at risk of domestic violence. However, the percentage of domestic violence victims who report the incident to the police is extremely low, and the proportion of those cases that result in a conviction is even lower. For women attempting to obtain a certificate from their GP, many GPs charge around £50 to support a legal aid application and there have been reports of doctors charging up to £300.
Coupled also with the huge fall in the number of legal aid firms caused by the cuts, the result is that domestic abuse survivors have to represent themselves in court (described as ‘litigants in person’), if they are able or decide to proceed to that stage. At best, litigants in person are unable to effectively present their case without the expertise of lawyers who train to understand the complex legal concepts that are inextricably connected to any judicial proceeding. At worst, they are unable to present any case at all. The majority of those eligible for legal aid have mental health problems, and they are more likely to be non-English speakers. If that was not enough, they may face brutal cross-examination from their abuser, which for many victims, feels like going through the abuse again.
The government slashed legal aid in 2013 as part of their plans to cut the national deficit, in the hopes of a £450 million annual saving. But removing the availability of legal aid from those who cannot afford lawyers presents an unacceptable obstacle to access to justice and risks taking us back to the 20th century when Sir James Mathew, an Irish judge, remarked that “in England, justice is open to all – like the Ritz Hotel.” By failing to ensure domestic abuse victims have access to legal advice and representation, the cuts to legal aid violate their human rights – particularly their right to a fair trial. Even from a purely financial perspective, the theoretical savings are minimised by the effects of increased litigants in person. Cases that could be resolved in an hour can take a day, and with an already crippling case load, the family justice system cannot survive this way. Indeed, one judge* in 2015 remarked that though money may have been saved from the legal aid funds, an equal amount of expense, if not more, had been incurred in terms of the costs of judges’ and court time.
*(Aikens LJ) in L v R ( EWCA Civ 61