Divorce and Domestic Violence – The Legal Aid Cuts

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Yesterday,on November 15th, the government announced that the system of civillegal aid in England and Wales would be subjected to major changes.  Justice Secretary Kenneth Clarke said civillegal aid would only be available in cases where "life or liberty was at stake" . The majority of the cuts are in thefamily arena, including child access, domestic disputes, and divorcecases. 

In attemptat appeasement, Clarke says that legal aid funding will continue for domesticviolence, and by doing so happily draws a neat line between divorce and divorceinvolving domestic violence. It’s notquite as simple as that, though, and it seems to me that using the presence ofviolence as a threshold for eligibility is wholly inappropriate given thecomplexities of domestic violence.

CharityWomen’s Aid claims that although two womenare killed every week as a result of domestic violence, only around 16% ofdomestic abuse victims ever call the police. One study  found that only after separation, 38%of parents with custody reported violence or the threat of violence from theirex-partners. However, even in court, it’s increasingly difficult toprove domestic violence.  A recent study in 2009 found that “simple allegations of harm continue to be marginalised incourt-based dispute resolution”. Surely,the cuts will only further convolute the issues of proving domestic violence,as it seems only too likely that there’ll be an increase in allegationslevelled at those claiming abuse by ex-partners only to get legal aid.

In light ofthese studies, it’s hard to see how all victims of unproven domestic abuse aregoing to be able to get the legal support they’re allegedly entitled to, andthus get custody for their children without paying hefty legal fees for properrepresentation.   

By denying legal aid to couples who are separating, Clarke seems to be blithely ignoring the all-too-often intertwinedissues of divorce and domestic violence and the impact they have on parents andchildren alike. Hopefully, the cuts won’tlead us in the same direction as Australia.  Australia’s 2006 legal changes placed absoluteemphasis on 50-50 childcare after divorce or separation, regardless of whetheror not the relationship had seen domestic violence. This led to children having to spend timewith a potentially violent parent – with the other parent being unable to doanything about it.

Legal aid exists to ensure that people who cannot afford topay for a lawyer aren’t left to fend for themselves. Thanks to Mr. Clarke, many victims ofdomestic abuse all over England and Wales are now going to have to do just that.