Archers domestic violence plot reveals real harm of LASPO cuts

Archer’s fans have been gripped for months by the domestic abuse plot culminating with Helen’s criminal trial earlier in the month.

While listeners were avidly following Helen and Rob’s storyline, the Serious Crime Act 2015 received royal assent on 3 March 2015. This created a new offence of controlling or coercive behaviour in an intimate or family relationship which was welcomed with open arms in December 2015. It sent a clear message that domestic abuse need not be limited to physical abuse. Although of course, as is often common, it started off as behaviour and spiralled quickly to much more including rape.

But herein lies the issue. How does a survivor of coercive and controlling behaviour, like Helen, come to the realisation that they are in an abusive relationship and need help? How can survivors get help before things either spiral or continue? Even if that conclusion is reached, a survivor of domestic abuse then faces the uphill battle of getting out of that relationship safely. How do you explain that you are in an abusive relationship without being able to point to a bruise or a threatening text message? Using Helen as an example, what response do you think a police officer would give her for reporting that ‘he told me my dress was too revealing’ – ‘was it?’.

It is therefore unsurprising that accordingly to statistics released by the Crown Prosecution Service, between December 2015 and the end of March 2016 only five prosecutions were completed. And also factor in this for victims of domestic violence who are parents: a referral to social services and potential child protection measures where you are most certainly no longer treated as the victim (see here).

Another issue Helen faces: will the police act on her allegations made during the trial that Rob had raped her – sadly not uncommon regardless of marital status. Helen would need to report the incidents of sexual violence to the police who would then take a full statement. They would then investigate and assess whether there was enough evidence for the case to be passed onto the Crown Prosecution Service, who in turn would decide whether they could prosecute. And if they do, well that’s another ordeal in a criminal court room but this time with no barrister of her own. Essential specialist support available around this process is available from Rape Crisis organisation (see below).

When a survivor of domestic abuse is ready to end the relationship it may be by this stage that they are completely isolated from their friends and family, and are wholly reliant on the perpetrator, financially and otherwise. Helen’s story has shone light on this issue. And of course, the financial and emotional worries are often overwhelming as they grapple with the impact not just on them but their child too. Perpetrators, like Rob, may make survivors feel they are helpless but there is help out there.

There are still a number of organisations out there to assist survivors of domestic abuse, who can provide support and legal advice. Many of these organisations are surviving against the back drop of harsh cuts (organisations listed below). The gap between what the law says it will protect victims from, and access to justice for victims to realise that has become a chasm.

Ask any family lawyer or barrister committed to protecting the rights of victims of domestic violence what their biggest challenge is, they may talk about The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO came into effect on 1 April 2013 removing the provision of legal aid from a large number of areas of law largely impacting on women with children.

For family law, this means that legal aid is no longer available to obtain advice in relation to the legal issues arising from the separation including divorce and finances and arrangements for the children. This is unless you can provide the Legal Aid Agency with evidence that you are the victim of domestic violence or there is evidence that your children have been abused by your partner/spouse/civil partner.

Regulations 33 and 34 of the Civil Legal Aid (Procedure) Regulations 2012 set out requirements for accepted evidence.

Surely this evidence should be easy for the survivor to obtain? It is not.

Let’s take Helen for example. She has not discussed the effect the abuse has had on her with her GP. A social worker has not been contacted to undertake a risk assessment or to raise concerns in relation to her son. She did not feel able to contact the police or attend hospital after she had been raped by Rob. She did not flee to a refuge. So how will she evidence her domestic abuse to the Legal Aid Agency? She may not be able to. Rob on the other hand will easily be able to produce a letter from a health care professional which ticks all of the Regulation 33 boxes.

So, in this example the perpetrator (if financially eligible), will be able to obtain public funding to be represented in the divorce, financial relief and child arrangement order proceedings. Leaving the survivor of the domestic abuse, representing themselves or having to fund representation privately.

The difficulties victims face in proving to the Legal Aid Agency that they have been subject to domestic violence has been helped by the legal challenge brought by Public Law Project on behalf of Rights of Women. The Court of Appeal earlier this year ruled that imposing a 24 month limit for the required domestic violence gateway evidence was unlawful and furthermore that Regulation 33 makes no provision for victims of financial abuse. The legal aid regulations have since been amended to include the gateway evidence required to demonstrate financial abuse. The time limit for the gateway evidence that previously was required to be dated within 24 months of making the application for Legal Aid, has been extended to 60 months. This evidence can still however be extremely difficult for many people to obtain.

There is still public funding available for mediation. Where neither party is represented. And the survivor attends the mediation alone, albeit in a separate room to the perpetrator. For obvious reasons these cases are often not suitable for mediation.

And so victims of domestic violence worried about their abusive partner around their child/ren often find themselves hostage to the lottery of any particular judge and often unrepresented as they battle to protect their child. Women’s aid’s excellent campaign sets out the stark reminders of why that is so dangerous and unfair.

The listeners’ response to Helen’s trial and the funding raised for women’s refuges is inspiring, but of course, any other trial for Helen – over residence and contact of Henry and financial support would not involve the court room with her barrister acting for her. There she would most likely be alone. She would most likely be cross-examined by Rob himself and vice versa.

If the government really wants to ensure protection for victims of domestic violence on any definition they will provide legal aid for them in all court proceedings not just criminal ones. Whilst Helen’s issues of domestic abuse were examined in the criminal court room, for most victim of abuse it is the family or civil courts who are the first to have the opportunity to deal with the issues, protect victims and ensure that it does not have to reach the crown court, which only deals with the most serious of crimes.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.