ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
THE RIGHT HONOURABLE LORD JUSTICE FULFORD & THE HONOURABLE MRS JUSTICE LANG
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE KITCHIN
THE RIGHT HONOURABLE LADY JUSTICE MACUR DBE
| THE QUEEN (ON THE APPLICATION OF RIGHTS OF WOMEN)
|- and -
|THE LORD CHANCELLOR AND SECRETARY OF STATE FOR JUSTICE
Mr Neil Sheldon & Mr Alasdair Henderson (instructed by Government Legal Department) for the Respondent
Hearing dates: 28th January 2015
Crown Copyright ©
Lord Justice Longmore:
"any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other."
This is the definition now contained in paragraph 12(9) of Part I of Schedule 1 of the Civil Legal Aid (Procedure) Regulations 2012 ("the 2012 Regulations") as amended by article 4(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order SI 2013/748.
The Statutory Scheme
"(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),
"(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
"(1) Civil legal services provided to an adult ("A") in relation to a matter arising out of a family relationship between A and another individual ("B") where –
(a) there has been, or is a risk of, domestic violence between A and B, and
(b) A was, or is at risk of being, the victim of that domestic violence."
i) Advice and representation in relation to divorce and financial relief and enforcement;
ii) Advice and representation on applications for transfers of tenancies;
iii) Disputes over children, including child arrangement orders (formerly contact and residence), prohibited steps orders to protect children against abduction or harmful contact with a parent, child maintenance and financial orders.
"(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual's prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
(j) the public interest."
"The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings."
(2) Regulations may make provision about the making and withdrawal of determinations under section 9 and 10.
(3) Regulations under subsection (2) may, in particular, include –
(a) provision about the form and content of determinations and applications for determinations,
(b) provision permitting or requiring applications and determinations to be made and withdrawn in writing, by telephone or by other prescribed means,
(c) provision setting time limits for applications and determinations,
(d) provision for a determination to be disregarded for the purposes of this Part if made in response to an application that is made otherwise than in accordance with the regulations,
(e) provision about conditions which must be satisfied by an applicant before a determination is made,
(f) provision about the circumstances in which a determination may or must be withdrawn,
(g) provision requiring information and documents to be provided,
(h) provision requiring individuals who are the subject of a determination to be informed of the reasons for making or withdrawing the determination, and
(i) provision for giving information to individuals who do not qualify for civil legal services under this Part about alternative ways of obtaining or funding legal services.
The 2012 Regulations
"33. Supporting documents: domestic violence
(1) An application for civil legal services described in paragraph 12 of Part 1 of Schedule 1 to the Act must include evidence of the domestic violence or the risk of domestic violence.
(2) For the purpose of para (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—
(a) a relevant unspent conviction for a domestic violence offence;
(b) a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;
(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
(d) a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;
(e) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) —
(i) by the individual ("B") with whom the applicant for civil legal services ("A") was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and
(ii) within the twenty four month period immediately preceding the date of the application for civil legal services,
provided that a cross-undertaking was not given by A;
(ea) evidence that B is on relevant police bail for a domestic violence offence
(f) a letter from
the person appointed to chairany person who is a member of a multi-agency risk assessment conference [MARAC] confirming that—
(i) A was referred to the conference as a
high riskvictim of domestic violence; and
(ii) the conference has, within the twenty four month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;
(g) a copy of a finding of fact, made in proceedings in the United Kingdom within the twenty four month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;
(h) a letter or report from a health professional who has access to the medical records of A confirming that
thethat professional or another health professional—
(i) has examined A in person within the twenty four month period immediately preceding the date of the application for civil legal services; and
(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence;
(iii) has no reason to believe that A's injures or condition were not caused by domestic violence;
(i) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);
(j) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services (and, where relevant, that period commences with the date on which A left the refuge), admitted to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
(ii) the dates on which A was admitted to and, where relevant, left the refuge; and
(iii) that A was admitted to the refuge because of allegations by A of domestic violence.
(k) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
(i) that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, refused admission to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence, on account of there being insufficient accommodation available in the refuge; and
(ii) the date on which A was refused admission to the refuge;
(l) a letter or report from—
(i) the person to whom the referral described below was made;
(ii) the health professional who made the referral described below; or
(iii) a health professional who has access to the medical records of A,
confirming that there was, within the twenty four month period immediately preceding the date of the application for civil legal services, a referral by a health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence;
(m) a relevant domestic violence protection notice issued under section 24 of the Crime and Security Act 2010, or a relevant domestic violence protection order made under section 28 of that Act, against B within the twenty four month period immediately preceding the date of the application for civil legal services;
(n) evidence of a relevant court order binding over B in connection with a domestic violence offence, which is in force or which was granted within the twenty four month period immediately preceding the date of application for civil legal services."
i) Applications in damages claims. Regulation 32 requires that the application must include an estimate of likely damages, for which requirements are set out; and
ii) Applications for the protection of children under paragraph 13 of Schedule 1. Regulation 34, entitled "Supporting documents: protection of children" requires evidence of the risk of abuse must be provided in one or more of the prescribed forms, which are similar to those in regulation 33.
The judgment of the Divisional Court
M was a victim of serious physical, sexual and psychological abuse (rape, strangulation, beating, other sexual assault, controlling/coercive behaviour) from her husband and father of two of her children. She had a variety of objective forms of evidence within regulation 33 but all outside 24 month time limit by a few months. Exceptional funding under section 10 was requested and refused. M suffered a relapse of her psychological condition by reason of attending proceedings unrepresented against her ex-husband who sought contact with children more than 2 years later. Only then was she able to obtain a medical report and, as a result of that report, obtain legal aid. The objective evidence M had at the time of her legal aid application, none of which entitled her to legal aid under regulation 33 was as follows:-
a) a caution for a domestic violence offence – but this was more than 24 months old;
b) the allegation of rape in September 2010 which was reported to the police, but in respect of which no charges were brought – police reports/call-outs do not fall within regulation 33;
c) the police had referred her to a MARAC who had assessed her as high risk; the report from November 2010 was more than 24 months old;
d) social services Child in Need reports regarding the children dating from June 2011, the latest of which was 25 months old;
e) counselling at a Rape Crisis centre which ended in June 2011 and was more than 24 months earlier;
f) findings of fact made in the divorce proceedings in 2010 more than 24 months before the application was made;
g) evidence from her former outreach worker from the local children's centre – there is no provision for this in regulation 33; and
h) a CAFCASS report dated 2nd July 2013 prepared in the Claimant's ongoing proceedings for child contact. This detailed the history of domestic violence and assessed the risks to the children: its conclusion was that it would not be in the children's best interests to progress contact. There is no provision for CAFCASS reports in regulation 33.
N was a victim of serious physical assault and psychological abuse by her husband. The objective forms of evidence were (a) a conviction for assault in 2006 (spent), injunctions, findings of fact in divorce and previous contact proceedings, two psychologist's reports from previous proceedings detailing psychological impact on her of abuse – PTSD. All the evidence was outside the 24 months period. Exceptional funding was refused. She began proceedings without legal aid but they induced flash-backs to previous assaults. Only then could she obtain a GP report and obtain legal aid.
Padfield and purpose?
"Analysis of Part 1 of Schedule 1 shows that the statute seeks to confine civil legal services which the Lord Chancellor must secure to cases which are judged to be of the greatest need. Those cases are identified by reference not only to the circumstances which an individual might face but also by reference to personal characteristics or attributes, for example, children or those suffering from mental ill health. But whether defined by reference to their status or by reference to their circumstances, Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services. Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need. The purpose lying behind the identification of services in Part 1 of Schedule 1 is to identify need. Thus, Parliament has chosen to exercise a judgment according to the criteria of need and not on any other basis."
"The reality is that need and cost are not strange bedfellows. It must be obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the service in question. Thus it is not merely unsurprising that Part 1 of Schedule1 lists categories where the need for civil legal aid is pressing; it is, in effect, inevitable."
"3. From the outset the legislative and policy intent was to ensure that those victims of domestic violence who genuinely required assistance in court proceedings were able to obtain legal aid. This is evident from the consultation paper and the Government's response to it. The MOJ also made this clear in subsequent actions, including departmental impact assessments and when conducting further reviews. These informed the secondary legislation governing the forms of acceptable evidence of domestic violence for the purpose of determining eligibility for legal aid.
4. On 10th November we published a consultation paper entitled "Proposals for the Reform of Legal Aid in England and Wales. In relation to civil legal aid, the paper explained:
"4.2.1. The scheme in this current form is no longer sustainable financially if the Government is to meet its commitment to reduce the public financial deficit. We have therefore had to make tough decisions about where best to target resources."
5. The paper proposed to specify in legislation the areas where legal aid would continue to be available to litigants. It set out the areas of civil and family law proposed for retention in the legal aid scheme and the areas proposed for exclusion from the legal aid scheme.
6. The paper proposed to retain legal aid for domestic violence and forced marriage cases, such as those involving non-molestation orders and occupation orders. However "given the need to direct resources at the issues of highest importance in a fair and balanced way", it was considered that legal aid would not be routinely justified for ancillary relief and private law family and children proceedings (4.67). This was subject to an exception, in recognition of the face that "where there is an ongoing risk of physical harm from domestic violence, different considerations apply". In relation to such cases, the Ministry of Justice consider that "the provision of legal aid is justified where the client may be unable to assert their rights and may face intimidation because of risk of harm" (4.67)."
"[t]he policy intention is to provide legal aid where an individual will be materially disadvantaged by facing their abuser in court, not simply to provide open-ended access to legal aid for domestic violence. The time limit provides a test of the on-going relevance of the abuse."
As to this passage, it is necessary to remark first that civil legal services are not confined to services for proceedings in court in which the victim of domestic violence has to face her (or his) abuser but must extend to relevant pre-court assistance. Secondly the reference to the time limit, if read on its own, risks pre-empting what the court has to decide; it is for the court to ascertain the purpose of the statute from its wording not for the minister or his officials, see Padfield itself at page 1030 and R v Secretary of State, ex parte Spath Holmes Limited  2 AC 349, 382.
"… a discretion conferred with the intention it should be used to promote the policy and objects of the Act can only be validly exercised in a manner that will advance that policy and those objects. More pertinently, the discretion may not be exercised in a way that would frustrate the legislation's objectives."
Any inquiry as to frustration of purpose must consider whether there is a rational connection between the challenge requirement and the legislation's purpose.
i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2)(a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect;
ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for 2 years but has expired before legal proceedings are begun;
iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;
iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two year period in which domestic abuse could be verified in accordance with the Regulations; if the Court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification;
v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verification has passed;
vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and
vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse).
a) requires verifications of domestic violence to be given within a 24 month period before any application for legal aid; and
b) does not cater for victims of domestic violence who have suffered from financial abuse.
Lord Justice Kitchin:
Lady Justice Macur: