Focus on women Issue 19 2013 Contents n The dangers of a right to parental involvement: Clause 11 of The Children and Families Bill 2013 2 n New legal aid rules in place from 1 April 2013 3 n A Call To End Violence Against Women And Girls: Action Plan 2013 5 n Law and policy updates 5 n Rights of Women updates 7 Welcome to the nineteenth edition of Rights of Women s policy newsletter, Focus on Women. This edition marks the end of our current London Councils funded project and as such this will be the last of this newsletter in its current form. We are very pleased to announce that we will be continuing our capacity building work as part of the Ascent Project, part of the London Violence Against Women and Girls Consortium. The Ascent Project will be delivery a range of support services for organisations working to address violence against women and girls including regular newsletters and briefings, accredited training, expert led seminars and borough surgeries. We will ensure that you receive information about the Project s activities and look forward to continuing to work with you. We are committed to ensuring that you are kept up to date with important developments in law and policy affecting women and engaging with you to respond to key consultations on the law and legal policy. We hope to secure further funding to enable us to continue this work. This edition provides updates on the recently published Government s A Call To End Violence Against Women And Girls: Action Plan 2013 and the implementation of the new definition for domestic violence which comes into force on 31 March 2013. It also provides a summary of the changes to family and immigration and asylum law legal aid, which will affect women from 1 April 2013 and an update on the passage of the Children and Families Bill through Parliament. At the end of this current project we want to say thank you to all those we have worked with to ensure that women s voices are heard in the development of law and legal policy. Your engagement in our events and in response to our lobbying and campaigning activities has enabled us to press for change in the way the law and legal policy responds to the needs of all women. We hope to continue working with you in the future. Emma Scott, Director This newsletter is published by Rights of Women, 52-54 Featherstone Street, London EC1Y 8RT. Telephone: 020 7251 6575 Fax: 020 7490 5377 Email: info@row.org.uk Rights of Women 2013. All rights reserved. No part of this publication may be reproduced or stored in a retrieval system or tranasmitted in any form by any means, without the permission of Rights of Women. Permission is provided to download this publication from our website www.rightsofwomen.org.uk Rights of Women Registered Charity 1147913
The dangers of a right to parental involvement: Clause 11 of The Children and Families Bill 2013 The Children and Families Bill has now begun its passage through Parliament. Clause 11 of the Bill will for the first time introduce the concept of shared parenting into judicial decision making in cases concerning children. Along with many organisations supporting parents and children through the family justice system, Rights of Women have serious concerns about the introduction of a legal presumption that involvement of both parents will further the child s welfare; as this will undermine the key principle that a child s welfare should be the court s paramount consideration in making decisions about children as set out in the Children Act 1989. We are particularly concerned about the impact that this will have in cases where domestic violence is an issue. We have known for many years that the family courts minimise the harm that domestic violence can cause to women. Picking Up the Pieces: domestic violence and child contact 1 supports the view that decision making in family cases continues to put women and children at risk of further violence. Government s rationale for the amendment The Government s rationale for introducing a legislative presumption in favour of shared parenting is to: 1) Tackle the perceived bias The Government has accepted that there is no bias towards women in the family courts 2, but believes that this amendment will tackle the perceived bias that men are discriminated against in court proceedings concerning children. Most applications for contact are made by fathers 3 and in 2010 only 0.3% of 95,460 of contact applications were refused. These statistics are unsurprising, given the presumption that already exists in family proceedings that contact with an absent parent is in the child s best interests 4. 2) Encourage sustainable relationships that will first and foremost be in the child s best interests The law already recognises the importance of contact with non-resident parents and the starting point for courts when considering whether to order contact is that contact with a non-resident parent is presumed to be in a child s best interests. A Ministry of Justice report concluded that overall, non-resident parents stood an even chance of getting everything they had initially sought... when making an application for contact. 5 Even where women and children have been subjected to serious domestic violence the tendency of the court is to order unsupervised overnight staying contact and very few applications are rejected under the current decision making process which is completely child centred. 6 Clause 11 will result in the law on children no longer being completely child focused. There is a perception in the media and amongst the public that women act as a barrier to good relationships between children and their fathers. Rights of Women s research dispels this myth; all the women interviewed as part of the project had experienced domestic violence and almost all of the women wanted their child to have a relationship with his or her father as long as it could be safe. 7 3) Reduce the numbers of separating parents going to court Worryingly, many media reports have indicated a 1 For more information on the law in relation to child contact see http://www.rightsofwomen.org.uk/pdfs/policy/picking_up_the_pieces_ Report_final.pdf 2 HC (2010-12) 518-1, para 65 3 Ministry of Justice data released further to a FOI request shows in 2011, 77% of parties applying for contact orders were men and 79% of respondents women. 4 Re l; Re V; Re M; Re h 2000 2 FLR 334 (Re LVMH) 5 Ministry of Justice, Outcomes of Applications to court for contact orders after parental separation and divorce, September 2008 p5. 6 Findings of ROW and CWASU s research supported multiple other studies (e.g. Saunders and Baron 2003; Thiara 2010), that despite histories of violence unsupervised contact was found to be routinely offered to violent fathers http://www.rightsofwomen.org.uk/pdfs/policy/ Picking_Up_the_Pieces_Report_final.pdf 7 http://www.rightsofwomen.org.uk/pdfs/policy/picking_up_the_pieces_report_final.pdf 2
widespread misunderstanding of the proposals as meaning a right to shared time for parents and also perpetuate the myth that parents do not currently have equal rights in respect of their children, when in fact all rights currently permeate from the child s best interests rather than notions of mothers or fathers rights. Rather than reduce litigation, this is likely only to increase it, as parents misinterpret the amendment as equating to equal time with their child. Lessons from other jurisdictions Denmark introduced shared parenting legislation in 2007 but in 2009 reports financed by the Government 8 revealed some serious problems. The studies identified that the motives for applying for shared residence were not child-centred but were seen in terms of fairness for parents. In February 2012 Denmark abolished the shared parenting legislation. The Social and Immigration Minister, Karen Hækkerup said, before the law focused on parents rights to their children. Now, we want to focus on the children s rights. We believe, that as in the Danish experience, clause 11 is likely to introduce a shift towards parents rights and away from the rights of the child. Similarly in Australia, where legislation was also introduced and later amended to make clear that the child s welfare was paramount, due to serious concerns regarding children. In particular the Australian experience underlines that there is a tension between promoting meaningful relationships and protecting children s safety and that given the relevance of this tension for a significant number of separated families, it is crucial to be clear that the protection of children from risk of physical and emotional abuse must always take precedence in any best interests consideration. 9 Family Justice Review In its final report the Family Justice Review (FJR), and having looked at the Danish and Australian experiences, specifically addressed the issue of amending the Children Act to include a presumption of shared parenting and concluded that... the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. 10 By pursuing Clause 11, the Government chooses to flagrantly disregard its own research and the views of stakeholders, such as the Law Society who referred to the proposals as seriously flawed. Recently the Justice Select Committee condemned the Government s proposals on shared parenting 11 concluding that they had significant concerns about the draft clause on shared parenting. Legal aid In April 2013 legal aid will be removed for family law with very limited exceptions for victims of domestic violence. The detrimental impact of the introduction of a presumption of shared parenting will be heightened in an era when individuals will no longer be able to access free advice and representation. The removal of legal aid is likely to exasperate the problems with clause 11, increasing disputes between parents and the number of cases going to court, without parents having the benefit of expert legal advice. The Bill is currently at Committee stage and due to be debated in the House of Commons again soon. We will continue lobbying and campaigning against the introduction of this new presumption. Please see our website for further campaign actions. New legal aid rules in place from 1 April 2013 Regular readers of Focus on Women will know that the Legal Aid Sentencing and Punishment of Offenders Act 2012 makes significant changes to the availability of and eligibility for legal aid in many key areas of law affecting women, particularly in family law and immigration law. 8 Ottosen, M. H. (2011) Enforced to Cooperate: Research-Based evaluation of the Danish 2007 Act on Parental Responsibility, SFI The Danish National Institute of Social Research, University of Iceland, October 2011 9 (Bryant 2012: 24) in Fehlberg, 2012: 709) 10 Family Justice Review (2011), Final Report, available online at: http://www.justice.gov.uk/downloads/publications/moj/2011/familyjustice-review-final-report.pdf (last accessed 25.07.12), page 141 11 http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/ pre-legislative-scrutiny-of-the-children-and-families-bill-/ 3
Family law legal aid what s left? From 1 April legal aid for legal advice and representation will continue to be available for the following family law cases:- n Applications for non-molestation and occupation order n Applications for restraining orders under the Protection From Harassment Act 1997 n Applications for forced marriage protection orders n Applications for seek and find orders where children have been abducted in the UK n Applications for orders in relation to children who have been abducted abroad n Proceedings brought by the local authority for care orders Family law legal aid what s gone? Legal aid for legal advice and representation will no longer routinely be available in the following cases:- n Divorce and judicial separation proceedings n Financial proceedings on divorce or dissolution of civil partnership n Applications in relation to children about contact, residence, prohibited steps orders or specific issue orders n Child maintenance and applications for financial support for children under Schedule 1, Children Act The domestic violence gateway Legal aid for these cases will, however, still be available in cases where there has been, or is a risk of, domestic violence and where women can provide one of the following pieces of evidence:- n that their perpetrator has been convicted of a domestic violence offence against them and that conviction is unspent n that their perpetrator has accepted a caution for a domestic violence offence against them within the past 24 months n that there are ongoing criminal proceedings in respect of a domestic violence offence against them n that they have a protective injunction (such as a nonmolestation or forced marriage protection order) in force or one had been made within the past 2 years n that their perpetrator had given an undertaking in respect of domestic violence and the undertaking is still in force or had been made within the past 2 years and where no cross undertaking has been given n that they have been referred to a Multi Agency Risk Assessment Conference as a high risk victim of domestic violence and a plan is in place within the past 2 years n that they have a report from a doctor, nurse or midwife confirming they were examined in respect of an injury or condition consistent with domestic violence within the past 2 years n that they have been assessed by Social Services as experiencing or being at risk of domestic violence within the past 2 years n that they have a letter from a refuge confirming that they stayed there for a period of more than 24 hours within the past 2 years For more guidance on how to obtain this evidence contact Rights of Women s helpline on 020 7251 6575. Important information for refuge providers The Ministry of Justice, which is now directly responsible for the legal aid scheme, has confirmed that the evidence they require of a woman s admission to a refuge is simply the following:- n confirmation of the date of admission n confirmation that the service provides services for women affected by domestic violence They have also confirmed that this evidence can be provided either in hardcopy on your letterhead or by email. Monitoring the impact of the changes Rights of Women, with Women s Aid England and Welsh Women s Aid, will be monitoring the implementation of the changes to legal aid because we are very concerned that many women will not have or be able to obtain the evidence of domestic violence that is required. We will be undertaking a survey for women to complete about the impact on them of the legal aid changes. This will be available from our website in due course. The results of this survey will be fed back to the Ministry of Justice and used in our ongoing lobbying and campaigning work to ensure that women affected by violence have effective access to legal advice and representation. Please see our website for further information. 4
A Call To End Violence Against Women And Girls: Action Plan 2013 The action plan provides an overview of the Government s activities (legislative and otherwise) to tackle violence against women and girls (VAWG). It was launched on 8 March to mark International Women s Day. You can read the strategy, as well as watching a video of the Home Secretary talking about it on the Home Office s website www.homeoffice.gov.uk. Law and legal policy developments from the previous action plan include: n The continuation of the pilot of Clare s Law (the domestic violence disclosure scheme) in Gwent, Wiltshire, Nottinghamshire and Greater Manchester. The scheme enables the police in these areas to disclose information about a person s previous violent offending to their new partner. The pilot will continue until September 2013. n The announcement of the creation of a new criminal offence of forcing someone to marry and breaching a Forced Marriage Protection Order. n Completing the pilot of Domestic Violence Protection Notices and Orders. The pilot will be evaluated by summer 2013. n Creating two new offences: stalking and stalking involving fear of violence or serious alarm or distress which came into force on 25th November 2012 (see Focus edition 18). n Signing the Council of Europe s convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The 2013 Action Plan retains a focus on prevention, provision of services, partnership working, justice outcomes and risk reduction but provides what it describes as renewed attention across the following key themes : n Integrating VAWG into wider Government reforms. n Prevention and early intervention. n Proving more support for under-represented women and girls. n An end-to-end approach to sexual violence and sexual exploitation n Measuring outcomes. In relation to asylum and immigration law, the Action Plan commits to making the asylum system as gendersensitive as possible (points 46-8). Whilst this is to be welcomed it is interesting to compare this section of the Action Plan with that on the Government s work with women in other countries. From the differences in length and detail of the two sections it may be inferred that the Government is more comfortable responding to violence against women that occurs abroad rather than protecting women who flee to the UK from it. In relation to the criminal justice system, in addition to the developments in relation to forced marriage (see above), the Action Plan states that the Home Office will work with the police and CPS to produce new guidance on the investigation and prosecution of rape and to counter rape myths that inappropriately influence juries. In relation to family law the Action Plan states that the case for implementing section 60 of the Family Law Act 1996 will be considered this year. This provision would provide for a prescribed person such as the police or Local Authority to make an application for a domestic violence injunction on someone else s (the victim s) behalf in a similar provision to that in the Forced Marriage (Civil Protection) Act for forced marriage protection orders. Law and policy updates Domestic violence change in definition On 19 September 2012 the Deputy Prime Minister announced that the cross-government definition of domestic violence would be extended. The two most significant aspects of the change are that: n new wording is to be used to capture the coercive control that is exercised by perpetrators; n young people aged 16 and 17 years old would now be included within the definition. According to the new definition, domestic violence is: Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: psychological physical sexual financial emotional 5
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour. Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. This definition, which is not a legal definition, includes so called honour based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group. This new definition will be implemented from 31 March 2013. Whilst the definition is not legally binding, it informs the work of all Government departments as well as organisations like the police, UKBA and Local Authorities. Prosecutors right of appeal in cases where the court grants bail Whilst Rights of Women has campaigned to try and protect legal aid in cases involving violence against women (see previous editions of Focus and our website), it is important to highlight other parts of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) which offer greater protection to victims and survivors of domestic and sexual violence. Part 3 of LASPO is one such section of the Act and contains important changes to both sentencing and to bail which came into force on 3rd December 2012. One of these sections introduces the prosecutor s right of appeal in respect of decisions on bail made by judges (rather than the police). This provision was included following a campaign by John and Penny Clough whose daughter, Jane, was murdered by Jonathan Cass in 2010. At the time of Jane s murder Cass was on bail in respect of charges of rape and assault following the end of their relationship. According to the CPS 12 this power is to be used sparingly where there is a risk of serious harm to the public. In the North West of England the CPS has been actively looking for potential opportunities to use the power and have appealed two decisions to grant bail, both of which involved domestic violence. Rights of Women is not aware of any cases in London where this power has been used but those who support victims of domestic violence should be aware of this new power and consider discussing it with the relevant police officer where appropriate. Sentencing Council Sexual Offences Guideline Consultation Rights of Women recently submitted a response to this important consultation looking at the guidelines issued to judges for the sentencing of those convicted of sexual offences. Our response focused on the key areas of rape and sexual assault, exploitation offences such as trafficking and historical sexual abuse and will shortly be found on our website. Discussion points from our recent workshop examining the consultation held in partnership with Eaves were also incorporated into our response. Our key points in summary were: n Overall the consultation is thoughtful and aims to try and incorporate recent key policy developments for sexual violence offences and the criminal justice system within the guidelines. However, the consultation does not always achieve this aim. n When asking judges to consider harm factors in a case as part of sentencing, it is important that the guidelines do not inadvertently create the impression that there are different types of rape, and that some are inherently more harmful than others. n The starting point and range of sentences in the guidelines were generally considered too low, especially considering the fact that offenders were usually released on licence after serving half their prison sentence. n The mitigating factor of previous good character and/or exemplary conduct was felt to reward offenders for good behaviour before committing the offence, ignoring the fact that the offence had now been committed and so surely previous good character was irrelevant. 12 Page 12, CPS Violence Against Women and Girls: Newsletter, Issue no 9 March 2013. Further information about the procedure that must be followed can be found in Part 19.9 of the Criminal Procedure Rules. 6
Our response also emphasised the importance of sentencing in its impact on the victim as well as the wider public. Following points made by an ISVA representative at a meeting with the Sentencing Council, we suggested that consideration be given to the way in which sentences are explained in court to take greater consideration to the sensitivities of the victim in terms of their credibility and their sense of justice. We anticipate that it will be the end of the year before changes to the guidelines are finalised. Forced Marriage Criminalisation Update On 8th June 2012 the Government announced that it would make forcing someone to marry a criminal offence. A series of road-shows and debates on this issue have been organised by the Home Office as part of a regional community engagement programme. The London event will be held on 25th March. Further information on this can be found here https://www. gov.uk/forced-marriage. Rights of Women updates New Project Future Advice Providers Rights of Women has received funding from the Baring Foundation for an exciting new project, Future Advice Providers, on our advice and information services for women with an insecure immigration status. Following the changes to legal aid made by LASP0 2012 (see previous editions of Focus and our website) and the impact that they will have on women with an insecure immigration status who are experiencing violence, this new funding will enable us to review and develop our services for this particularly vulnerable group of women. Keep up-to-date with this rapidly changing area of law and practice by joining our Women s Migration and Asylum Network. Email our Head of Law, Catherine Briddick cate@row.org.uk to find out more. 7