A lack of legal representation in family courts stems from legal aid cuts. Photo: Getty
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How legal aid cuts scupper physical or sexual abuse cases in the family courts

A wrong decision may leave children and adults unsafe or, conversely, may deprive a child of a relationship with a parent who is in fact no risk at all.

I recently read a transcript of the cross-examination of the complainant in a rape trial. Sensitive yet methodical, moving from topic to topic and from document to document, I followed the defence counsel constructing clear and to-the-point questions to draw out important information without gratuitously upsetting or humiliating the witness, firmly yet politely exposing flaws and contradictions in her account. 

This is not a skill learnt overnight, nor is it even a skill that all advocates possess, because trials of sexual assault and rape are highly specialised work. So specialised, in fact, that in criminal proceedings the lawyers and judges must be specially “ticketed” before being let loose on this sort of case, which often involves high stakes and highly vulnerable witnesses (as the sad suicides of a number of rape complainants in recent years reminds us). 

The seriousness of being charged with a criminal offence is such that legal aid is available for defendants so that they may be represented if they wish. But it is because of the vulnerability of a complainant of sexual assault or rape that the defendant is barred from questioning the complainant directly – uniquely a defendant in this sort of criminal trial is compelled to ask questions of the complainant through an advocate (even if he has chosen to represent himself).

Parliament legislated for this in order to prevent the re-traumatising effect on the honest complainant of having to confront and engage with their attacker – and to ensure that the complainant is able to give their best evidence. Thus, the state provides representation for the defendant partially for the benefit of the person who accuses him.

The reality is, of course, that most of us wouldn't have the first clue how to go about cross-examining someone who was accusing us of this sort of awful crime – nor any idea of how to manage such a task while containing our emotions. Sometimes the allegation is of rape or sexual assault in the course of or following an intimate relationship. How much more complicated then are the emotional and factual issues?

Even where an allegation of this kind does not lead to a criminal trial, it may still need to be tried where the complainant and accused are parents of a child together. This is because, in the absence of a criminal conviction to use as a factual base for decision-making, the family court may need to decide itself whether the allegation is true or false, or perhaps exaggerated or embellished in order to prevent a relationship between parent and child.

It is often said that false rape allegations are rare; a rate of 2 per cent is often cited. There is controversy as to how accurate such a proposition is, but that makes it no less important to identify whether this case is one of abuse or not – for such findings of fact are the foundation of good decision-making for children who may either be at risk physically from one parent or emotionally from the other.

Even where there has been an acquittal in the criminal court, this factfinding exercise may be necessary – because to be proved (and thus treated as true) in the family court (a “civil” court), a complainant simply has to show that the allegation is more likely than not to be true – they do not have to prove truth beyond reasonable doubt. Thus, a person may be acquitted in the criminal trial and yet found to have committed the act in the family court (in the same way that OJ Simpson was acquitted in the criminal trial but found responsible in a civil court case for the wrongful death of Ronald Lyle Goldman and battery of Nicole Brown Simpson).

Standard of proof aside, you might imagine that where such allegations are made in family court cases, a similar approach to legal representation and trial process applies. But you would be wrong. Since April 2013, there is no legal aid available for those parents accused by their ex-partner of rape, sexual assault, child abuse or domestic violence in the family court case between them (although where social services apply for a care order due to child protection concerns legal aid is available as of right).

The legislation that extinguished legal aid for this sort of case (the Legal Aid Sentencing and Punishment of Offenders Act 2013 – LASPO) did create a scheme of “exceptional” funding, but that application process has been heavily criticised as too complicated for a non-lawyer to manage, and too time-consuming for most legal aid lawyers to take on, given they are unable to recoup the cost and the vast majority of applications are rejected. The High Court has just ruled that those criticisms were justified and the scheme will need redrawing.

And what’s more, there is no power to grant exceptional funding at all if the applicant is over the (very low) means threshold, by even so much as a penny. The exceptional funding scheme has been subject to a number of legal challenges in the courts, and while success rates have gone up recently, they remain very low.

Although there have been a handful of parents who have secured funding through this scheme (usually after months of delay), the reality is that for the vast majority of accused parents this will not be a viable route to legal representation – even where the allegations are very serious or may lead to the court refusing all contact.

So, any parent who is the subject of allegations of domestic or child abuse (allegations of some degree of domestic abuse are relatively common, the really serious allegations less so) is on their own unless they are able to find thousands of pounds for legal representation and advice, or are lucky enough to find a lawyer who will act for free.

Little wonder that many are turning to McKenzie friends (people who assist a litigant in court, and don’t need to be legally qualified) to support them through the process, albeit that McKenzie friends are generally not permitted to question witnesses or address the judge.

While anecdotally some McKenzie friends may provide a beneficial service, this is far from guaranteed. Such individuals are usually unqualified, unregulated and uninsured and often charge rates similar to those of experienced family lawyers. As such they are a risky proposition both in terms of economics and outcomes.

In many cases, parents who have separated and who cannot agree on arrangements for their children bumble through and get to the other side with little or no legal help, perhaps enlisting the skills of a mediator to avoid court altogether. But the simple fact is that there are some disputes that can’t be resolved that way, and that need more than a judicial finger in the air to decide what shape a child’s relationship with a parent should take.

Some cases need the evidence to be gathered, scrutinised and tested, and the facts to be found before decisions can begin to be made. Because sometimes violence or abuse is so significant that there is a huge knock-on effect for both the abused parent and child.

Typically in such cases (but not always), it is the mother making the allegation. She may be legally represented because legal aid for alleged victims has survived the legal aid reforms – but the parent said to have carried out the abuse will not be so fortunate unless he is a man of means. While he will continue to be presumed innocent unless it is proven otherwise, it may not feel to him very much like he is benefitting from that presumption, particularly if he is prevented from seeing his own child while the court makes up its mind.

Sometimes allegations of domestic abuse are comparatively minor or of an isolated incident, but in other cases very serious violence or rape (or abuse of a child) may be alleged. A finding of very serious violence or rape doesn’t necessarily mean that the court will refuse all contact between a child and that parent, but it is highly relevant – and will most likely mean that any contact that does take place requires careful planning and risk assessment.

Family courts are tasked with conducting a similar exercise to the trial in the criminal court, but are given fewer tools to make that efficient and fair. People accused of really serious and unpleasant behaviour – who are often prevented from having contact with their children while allegations are outstanding, and who (if the allegations are proved) may find future contact with their children continues to be restricted or is even stopped – are left to try and assess the gravity and strength of allegations against them. They are also left to work out what documents they need to gather in order to demonstrate falsehood, and to somehow represent themselves at trial – asking questions of the ex who says they are abusive, and addressing the judge on the law.

People who are the victims of really serious and unpleasant behaviour may be asked questions by the person whose voice sends them back to that place they do not want to go back to, or who can silence them with “that look”, who for years has made them give in, capitulate, break down. That the victim has a lawyer to represent her is little protection in such a situation – the witness box is a lonely place.

And what’s more, a victim of abuse who has suffered abuse more than two years before they are served with a court application by the other parent is likely to find they are ineligible for legal aid due to a two-year rule that seems to presuppose that the vulnerability of a victim of abuse is expunged after this comparatively short period – and if they are working in even relatively low-paid employment they will be ineligible on means grounds anyway.

The judiciary and legal profession have been very exercised by all this, as, no doubt, have many parents involved in such cases. A number of cases moving through the family court concluded that, by analogy with the criminal courts, the accused could not be permitted to cross-examine his alleged victim, and that such a scenario would amount to a breach of the human rights of one or other party.

Neither – went the logic – was it appropriate for the judge to conduct the questioning him/herself. Therefore, in order to prevent a breach of human rights by the court therefore – so the argument ran – the Court Service itself would have to pay for a lawyer to step into the breach.

But such an approach has not withstood the scrutiny of the Court of Appeal who, in a case called Re K and H (Children), recently scotched the whole idea. It is now clear that the court has no power to make an order requiring the Court Service to pay for representation. The Court of Appeal signalled pretty clearly in its judgment in K and H that judges need to stop handwringing and get on with it, to find ways round it – broadly, either by requiring the accused to put questions through a lawyer (if he is able to afford it), or by the judge asking questions herself or enlisting the help of a Justices Clerk to do so.

The Court of Appeal acknowledged that in some cases (for example, those requiring testing through complicated questioning, or where there is complex medical evidence) a lack of legal representation could lead to a breach of human rights – but they could offer no solution for that hypothetical scenario other than to recommend that Parliament could amend the law to give judges of the family court similar powers to grant legal aid to those accused of rape in criminal courts, for the purposes of cross-examining the complainant.

As it happens, the Court of Appeal described the case of K and H itself as “fairly straightforward” – a case where they thought the judge should probably have just done the questioning himself. It involved proceedings about a father’s contact with two children, where his older 17-year-old stepdaughter had made allegations of sexual abuse against him. The 17-year-old was to give evidence in order that the court could decide if those allegations were true, and if so what risk the father posed to the younger children.

How many unrepresented litigants facing such accusations would see such a case as “fairly straightforward” is a moot point. We might ask how a 17-year-old would experience being asked the sort of questions designed to test her evidence by the judge who is making the decision about whether she is telling the truth?

And so, for the time being at least, judges and parents dealing with cases of this kind will be left to devise their own solutions, to muddle along. A judge who asks questions on behalf of one party may relieve some of the pressure from both parties where one is unrepresented, but may be vulnerable to accusations of bias.

And while the accused will undoubtedly benefit from a degree of testing of the evidence by the judge, this is unlikely to be as effective as cross-examination after a confidential and frank discussion between lawyer and client – still less if essential evidence has not been identified, collated and analysed in advance for use at trial.

While a judge can ask broad questions on a particular topic, they simply cannot conduct the sort of precise cross-examination that a skilled advocate can deploy on behalf of their client. While an advocate must question in a way that is courteous and sensitive to the vulnerabilities of a witness (and the judge is responsible for ensuring that they do so), the advocate can and must confront inconsistencies and implausible aspects of the evidence of a witness in a way that a judge is likely to feel would be incompatible with their duty of impartiality.

Where there is a lower standard of proof (the “balance of probabilities”), such things may sometimes make all the difference. A wrong decision may leave children and adults unsafe or, conversely, may deprive a child of a relationship with a parent who is in fact no risk at all.

Nobody here is at risk of a loss of liberty as in the criminal courts, but the stakes for children and parents are every bit as high, and the consequences of a wrong decision every bit as lifelong.

Lucy Reed is a family law barrister who blogs at pinktape.co.uk and tweets as @familoo.

Lucy Reed is a family law barrister who blogs at pinktape.co.uk and tweets as @familoo.

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Clive Lewis interview: I don't want to be seen as a future Labour leader

The shadow business secretary on his career prospects, working with the SNP and Ukip, and why he didn't punch a wall. 

“Lewis for leader!” Labour MP Gareth Thomas mischievously interjects minutes after my interview with Clive Lewis begins. The shadow business secretary has only been in parliament for 18 months but is already the bookmakers’ favourite to succeed Jeremy Corbyn. His self-assuredness, media performances and left-wing stances (he backed Corbyn in 2015 and again this year) have led many to identify him as Labour’s coming man.

On 19 September, I met Lewis - crop-haired, slim and wearing his trademark tweed jacket - in Westminster's Portcullis House. He conceded that he was flattered by the attention (“It’s lovely to hear”) but was wary of the mantle bestowed on him. “This place has lots of ex-would-be leaders, it’s littered with them. I don’t want to be one of those ex-would-be leaders,” the Norwich South MP told me. “I don’t want a big fat target on my head. I don’t want to cause the resentment of my colleagues by being some upstart that’s been here 18 months and then thinks they can be leader ... I’ve never asked for that. All I want to do is do my job and do it to the best of my ability.”

But he did not rule out standing in the future: “I think that anyone who comes into this place wants to do what’s best for the party and what’s best for the country - in any way that they can.”

Lewis, who is 45, was appointed to his current position in Labour’s recent reshuffle having previously held the defence brief. His time in that role was marked by a feud over Trident. Minutes before he delivered his party conference speech, the former soldier was informed that a line committing Labour to the project’s renewal had been removed by Corbyn’s office. Such was Lewis’s annoyance that he was said to have punched a wall after leaving the stage.

“I punched no walls,” he told me a month on from the speech. “Some people said to me ‘why don’t you just play along with it?’ Well, first of all it’s not true. And secondly, I am not prepared to allow myself to be associated with violent actions because it’s all too easy as a black man to be stereotyped as violent and angry - and I’m not. I’m not a violent person. Yes, it’s a bit of fun now, but very quickly certain elements of the media can begin to build up an image, a perception, a frame ... There’s a world of difference between violently punching a wall and being annoyed.”

Lewis said that he was “happy with” the speech he gave and that “you’re always going to have negotiation on lines”. The problem, he added, was “the timing”. But though the intervention frustrated Lewis, it improved his standing among Labour MPs who hailed him as the pragmatic face of Corbynism. His subsequent move to business was regarded by some as a punishment. “Do I think there was an ulterior motive? I’ll never know,” Lewis told me. “I’m confident that that the reason I was moved, what I was told, is that they wanted me to be able to take on a big portfolio”.

Nia Griffith, his successor as shadow defence secretary, has since announced that the party will support Trident renewal in its manifesto despite its leader’s unilateralism. “Jeremy Corbyn deserves credit for that,” Lewis said. “I think everyone understands that Jeremy’s position hasn’t changed. Jeremy still believes in unilateral disarmament, that is his modus operandi, that’s how he rolls and that’s one of the reasons why he is leader of the Labour Party ... But he’s also a democrat and he’s also a pragmatist, despite what people say.”

Lewis, himself a long-standing opponent of Trident, added: “You need a Labour government to ensure that we can put those nuclear missiles on the table and to begin to get rid of them on a global scale.”

He also affirmed his support for Nato, an institution which at times Corbyn has suggested should be disbanded. “The values that underpin Nato are social democratic values: liberty, democracy, freedom of expression. Let’s not forget, it was Clement Attlee and the New Deal Democrats that initiated and set up Nato. It’s about being in it to win it, it’s about winning the arguments inside Nato and making sure that it’s a force for good. Some people would say that’s impossible. I say you’ve got to be in it to be able to make those changes.”


Clive Anthony Lewis was born on 11 September 1971 and grew up on a council estate in Northampton. It was his Afro-Caribbean father, a factory worker and trade union official, who drew him to politics. “My dad always used to say “The Labour Party has fought for us, it’s really important that you understand that. What you have, the opportunities that working people and black people have, is down to the fact that people fought before you and continue to fight.”

After becoming the first in his family to attend university (reading economics at Bradford) he was elected student union president and vice president of the NUS. Lewis then spent a decade as a BBC TV news reporter and also became an army reservist, serving a tour of duty of Afghanistan in 2009. He was inspired to enlist by his grandfather. “He fought in Normandy in the Second World War and I used to go back over with him and see the camaraderie with the old paras ... Whatever people’s views of the armed forces, that’s one thing that no one can take away, they generate such friendships, such a bond of union”.

Lewis told me that his time in the military complemented, rather than contradicted, his politics. “I think many of the virtues and values of the army are very similar to the virtues and values of socialism, of the Labour Party. It’s about looking out for each other, it’s about working as a team, it’s about understanding. The worst insult I remember in the army is ‘jack bastard’. What that said was that you basically put yourself before the team, you’ve been selfish”.

He added: “People have to remember that the armed forces do as democratically elected governments tell them to do. They don’t arbitrarily go into countries and kick off. These are decisions that are made by our politicians.”

After returning from service in Helmand province, he suffered from depression. “I met guys who had lost friends, seen horrible things and they had ghost eyes, dead eyes, it’s the only way I can describe it. People that I saw had far more reason to have depression or worse. Part of my negative feedback loop was the fact that I felt increasingly guilty about being depressed because I didn’t feel that I had the right to be depressed because I knew people who’d seen far worse ...  I’m now told that is quite common but that doesn’t make it any easier.”

Lewis added: “It makes you realise that when the armed forces go abroad, when they do serve on our behalf, what they do, what they go through, that’s not something that anyone can take away from them.”

In May 2015, he was one of a raft of left-wing MPs (Richard Burgon, Rebecca Long-Bailey, Kate Osamor, Cat Smith) to enter parliament and back Corbyn’s leadership bid. As shadow business secretary, he believes that Brexit and Theresa May’s economic interventionism offer political openings for Labour. “I feel debate is moving onto natural Labour territory. But not the Labour territory of the 1970s, not picking winners territory. It’s moving to a territory that many on the left have long argued for, about having a muscular, brave, entrepreneurial state which can work in partnership with business”.

He added: “We can say we’re the party of business. But not business as usual ...  I think there are lots of people now, and businesses, who will be aghast at the shambles, the seeming direction we seem to be going in.

“The British people have spoken, they said they wanted to take back control, we have to respect that. But they didn’t vote to trash the economy, they didn’t vote for their jobs to disintegrate, they didn’t vote to see their businesses decimated, they didn’t vote to see a run on the pound, they didn’t vote for high levels of inflation.”

On the day we met, an Ipsos MORI poll put the Tories 18 points ahead of Labour (a subsequent YouGov survey has them 16 ahead). “I’m not too spooked by the polls at the moment,” Lewis told me when I mentioned the apocalyptic figures (he has a potentially vulnerable majority of 7,654). “Nobody wants to be where we are but I’m quite clear that once we get up a head of steam we’ll begin to see that narrow. I definitely don’t have any doubts about that, it will begin to narrow.”

Lewis is a long-standing advocate of proportional representation and of a “progressive alliance”. He told me that Labour, the Liberal Democrats and the Green Party should have fielded a single pro-European candidate in the recent Witney by-election (which the Conservatives won with a reduced majority) and that he was open to working with the SNP.

“There are lots of people, including the Scottish Labour Party, who are aghast that you can say that. I think it has to be put out there. I want to see a revival of Scottish Labour but we also have to be realistic about where they are, the time scale and timeframe of them coming back.

“I’m not talking them down, I’m simply saying that we want to see a Labour government in Westminster and that means asking some hard questions about how we’re going to achieve that, especially if the boundary changes come in ... If that means working with the SNP then we have to look at that.”

Even more strikingly, he suggested that Labour had to “think about talking to parties like Ukip to try and get over that finishing line.”

Lewis explained: “If Ukip survive as a political force these coming weeks and months they’re obviously pro-PR as well. I despise much of what Ukip stand for, it’s anathema to me, but I also understand that it could be the difference between changing our electoral system or not ... These are things that some people find deeply offensive but I’ve not come into politics to duck the tough issues." 

He praised Corbyn for “having won” the argument over austerity, for his “dignified” apology over the Iraq war and for putting Labour in surplus (owing to its near-tripled membership of 550,000).

“History will show that Jeremy Corbyn was someone who came in at a time when politics was tired, people were losing faith in it, especially people who come from the progressive side of politics.

“Whatever people think of Jeremy’s style, whatever they think of his leadership, whatever they think of him personally, you can’t take that away from him. He’s revived politics in a way that we haven’t seen in this country for a long time. I know he’s got his doubters and detractors but I think ultimately he’s made our party in many ways stronger than it was a year ago.”

I asked Lewis whether he expected Corbyn to lead Labour into the next general election. “Yes, I do. And I think it depends when that general election is. If it’s next year then most certainly.

“If it’s 2020? That’s a question for Jeremy. I think, as I understand it, he is going to but I don’t know the inside of his mind, I don’t know what he’s thinking. I haven’t heard anything to suggest that he has anything other than the intention to lead us into a general election and to become prime minister.”

Of his own prospects, he remained equanimous. “Always be wary of Greeks bearing gifts. It’s lovely to hear but I know my own fallibilities and weaknesses.

“I haven’t come from a background where I’ve had it imbued in me from an early age that I’m destined to lead or to rule. I don’t have that arrogant self-belief, the sense of entitlement that it’s coming my way or should do. I can’t believe I’m in the House of Commons and I can’t believe that I’m shadow business secretary. I still pinch myself. That’s enough for me at the moment, it really is. That’s the honest truth.”

George Eaton is political editor of the New Statesman.