Women’s Aid, Resolution and the Law Society are right to highlight the problematic reality that alleged abusers regularly cross examine women, or men, that they are accused of abusing. The issue of the abuse suffered and the gravity of it are frequently at the very centre of disputes about the future of the former couples’ children, such as where they should live and how much contact, if any, they should have with their parents.
We have a good relationship with Women’s Aid and frequently represent people in the Family Court who have suffered domestic abuse. I am a member of Resolution and ,of course, as a Solicitor I am also a member of the Law Society in England and Wales. That said, all the named organisations should appreciate that the matter is more complicated than simply one of protecting the rights of the vulnerable.
There is, crucially, the issue of the rule of law or rather the rights of those accused of abuse to a fair trial, Article 6 the ECHR, the right to family life, Article 8, both enshrined in our law by the Human Rights Act. In short, we all have the right to test the evidence of those making accusations against us. Were that not to be the case how could findings of fact made in such cases be assuredly “safe?” The issue is more complicated than simply asserting a blanket ban for people acting in person being able to question, or “test”, the evidence given against them.
One option would be for the Judge to take on the role of the advocate for the accused. The obvious difficulty there is the tarnishing of impartiality that may follow, if only in terms of perception. Women in such unfortunate circumstances can request, and are often granted, a screen to be hidden from the view of those who have, allegedly, abused them. Helpful perhaps but of limited value. A second possibility is for the Court to grant a Guardian for the children who can then be represented and thus take on the cross examination role. This is, however, problematic because the Legal Aid Agency view that as a circumvention of the law that abolished legal aid in such cases.
Until LASPO in 2012 men, or women, accused of Domestic Violence or other abuse against their partner could obtain means and merits tested legal aid to be represented in Children Act cases thereby ensuring that the “victim” was not being personally cross examined by the very person they accused of harming them. With the new regime legal aid is never available, even in the most extreme cases, for such alleged perpetrators even if they vehemently deny the claims made against them. It is a direct and foreseeable consequence of the abolition of legal aid in most private law Family Court cases. This was made clear to the Government during the consultation at the time.
As my beloved aunt used to say, “You cannot have your cake and eat it.”
Clive Rebbeck’s letter to the Times in response to an article by Frances Gibb Legal Editor, yesterday’s edition