Access to Justice: the difficulties faced by judges in ensuring a fair trial in family courts when a victim of domestic abuse appears as a litigant in person and is cross examined by an alleged perpetrator. A case study of Domestic Abuse Bill 2019-20, UK

Abstract

This thesis discusses the impact of cuts in legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on victims of domestic abuse in UK with a particular focus on married women with or without children and how it undermines access to justice for them. It also explores the key problems that raise concerns about the victim’s right to a fair trial in family court proceedings when they come to the court as a litigant in person. Additionally, it also explores a new Domestic Abuse Bill 2019-21 that is currently at the second reading stage in the House of Lords and analyses the extent to which it addresses the concerns and is responsive to the needs of the victims. It ends with emphasizing that urgent amendments are needed in the bill and in the provision of legal aid, as together it can make a worthwhile meaningful change in the lives of these women suffering from this crime. The main reason why the issue of domestic violence, with a specific focus on married women with or without children, and the impact of legal aid cuts on victims have been explored together is because these problems have persisted for far too long. Women have continually been the subject of this suffering. With the current pandemic resulting in even more domestic abuse cases and deaths, it becomes extremely necessary to put an end to the torture. This health crisis has given the law makers a much needed reminder that domestic abuse crime must be stopped once and for all. Even though the cuts in legal aid were introduced, it was specifically preserved for victims of domestic violence in family proceedings. It may seem that at least the needs of the victims will be catered for in the courts system, but the reality is quite different. Certain barriers still exist that prevent these victims from either accessing legal aid/courts or they end up appearing as a litigant in person in courts if they choose to deal with the issue. Knowing that such barriers have damaging impact on victims, the parliament has not taken any robust action either in the form of repealing the legislation that introduced these cuts or by effectively removing the hurdles that these victims face. Another reason why a particular emphasis has been placed on married women in abusive relationships involving children is because children are indirect victims of the abuse. Children, who are a part of this situation, can face many additional psychological, mental health problems in future which is only likely to get worse if the conflict is not resolved quickly and if they are not moved to a better, safer and a healthier environment. This abuse even though is targeted at the woman in the household, tends to leave a very strong negative impression on children who are witnessing everything. This crime weakens the fabric of the society due to its damaging aftereffects, hence making it all the more important for it to be tackled with the same or even greater force with which it continues. This thesis looks into UK legislation and an upcoming bill, the primary reason being to use UK as an example for exploring and analyzing an issue which is not specific to UK only. Domestic abuse together with availability of legal aid, accessibility to courts and other specialist services are issues that exist in other parts of the world as well. It is a global issue, although the findings of this thesis would have to be adjusted according to the specific needs and requirements of victims in those countries. The proposal of solutions or improvements that have been recommended in the last chapter are not intended to be firmly entrenched, instead, given that the bill is going through the parliamentary stages, is still developing and hasn’t become law yet, these recommendations are only to be treated as guidelines that would help these victims along with their children. The resources mainly used for the thesis were articles on access to justice, issues surrounding the provision of legal aid and philosophy behind introduction of cuts by the government. Reports from various nongovernmental organizations, news articles, parliamentary publications, parliamentary debates (Hansard) specifically in the House of Commons and post implementation reviews with respect to law on legal aid cuts were used in order to get a deeper current insight on how the Domestic Abuse Bill has responded to the issues facing the victims in family courts, what is remained to be achieved and what ministers and other NGOs think about the bill and how effective they think it would be. These resources have also helped in revealing certain unsettled pending issues related to accessibility of legal aid by the victims that requires immediate attention. The thesis is structured in a way that it first introduces the general concept, the overarching aim of access to justice. It is then narrowed down to the concept of legal aid in UK, examining the problems surrounding it with respect to private family matters, the reasoning behind those issues and how these issues obstruct the goal of achieving access to justice. It then gives a detailed account of what victims of domestic abuse experience in two stages; firstly, when the crime is not reported and secondly, when the victim decides to appear in court without legal representation due to legal aid/advice availability issues. It further describes what judges have to go through backed by case law, when dealing with a victim as a litigant in person. This is where the relevance and the importance of the new bill come into play which has been discussed later. The bill makes the court experience for the victim as a litigant in person less traumatic than it would have been if certain provisions had not been introduced in it. Apart from being less traumatic, the provisions also help in ensuring a fair trial which is a very important aspect to be considered since the aim is to ensure not just the safety of the victim, but the child involved in the conflict as well. The thesis later focuses on the gaps that still remain to be addressed in both the bill and the law on legal aid. It proposes certain solutions and amendments in both that can make a noticeable difference for these victims and their children. The thesis also aims to show that access to justice is not just referred to access to courts or what happens in the court system; it also refers to the provision of other services, the unavailability of which can also harm the victims and their children. As a result, a discussion of those services has also been included in the last two chapters. The reason why the thesis has been structured in this way is twofold: Firstly, to address that the concept of access to justice goes beyond a fair trial and the functioning of the courts system and secondly, it aims to show that the bill and the law on legal aid have a simultaneous impact on the victims. The bill strengthens the accountability of the perpetrators for their actions while on the other hand their accountability declines due to the lack of provision of legal aid/advice for the victims. If gaps are filled in both areas, a very strong, protective mechanism seems to be in place for victims and their children.