Legal aid U-turn for brain-damaged babies and domestic violence victims

http://www.guardian.co.uk/law/2012/feb/29/legal-aid-bill-concessions-justice-ministry

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Children who suffer brain damage at birth and more victims of domestic violence will be entitled to financial support for courtroom claims, the Ministry of Justice has announced in significant concessions to its legal aid bill.

Two amendments were tabled on Wednesday abandoning plans to remove entitlements involving highly emotive cases in the hope of heading off defeat in the House of Lords next week.

The decision follows cross-party talks in the upper house where voting on the report stage of the legal aid, sentencing and punishment of offenders bill is due to start on Monday.

The bill is aimed at saving £350m from the annual budget for civil legal aid but has run into strong opposition from campaigners and peers who claim that it will restrict access to justice for the poorest in society.

After suffering reversals in the Lords over the health and welfare bills, ministers appear anxious to give ground rather than face the prospect of having to overturn more votes in the Commons which risks transforming the bill into a constitutional row.

Announcing the changes, the ministry said: "The government is committed to supporting victims of domestic violence. We have laid an amendment to the legal aid bill which will put it beyond doubt that those who have suffered physical, psychological or financial domestic abuse will continue to receive a legal aid to help them to resolve any separation disputes over property or child contact."

The amendent adopts the definition of domestic violence used by the Association of Chief Police Officers (Acpo). Opponents of the bill criticised its previous definition as too narrow. It acknowledges that as well as physical abuse, psychological abuse, emotional abuse and financial abuse through bullying a partner by controlling their finances will all be regarded as domestic violence.

The ministry, which is keen to encourage mediation, as a cheaper alternative to litigation, accepts that is unlikely to be suitable for victims of domestic violence.

Psychological abuse could entail: a person being forced to change their behaviour because of fear, isolating a person from the family and friends, intimidation, insulting, threatening to harm them or their children.

The ministry stressed that the government was already giving £28m funding over the next four years for services to protect and support victims of domestic and sexual violence.

On brain damage at birth, the ministry said: "We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid. We have therefore brought forward an amendment which will make this clear in law. A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue."

The bill is aimed at replacing legal aid for clinical negligence cases with a reformed system of no win, no fee arrangements, under which, it believes, more cases will be funded privately, rather than by the taxpayer.

Welcoming the concession, Peter Walsh, the chief executive of Action against Medical Accidents, said: "It's a tiny step in the right direction but it's not enough. It makes the decision to take other clinical negligence cases out of scope even more irrational.

"What about other complex medical cases? Is the government really saying that as child of two who sufffers cataclymsic injuries less deserving than a baby? What is the distinction they are making? There's an overpowering argument for keeping all clinical negligence cases in scope."

The lobby group Justice for All said: "These small concessions are welcome, but have been in the pipeline for weeks and don't go far enough. On domestic violence, it is vital that the evidence criteria to prove domestic violence don't exclude victims from support.

"But the real battle will be over social welfare law, particularly legal aid for welfare benefit issues. A cross-party amendment to keep legal advice for appeals and reviews is gathering strong support, and we urge peers to keep pushing for this vital change."

David Allison, chair of Resolution, which represents lawyers who deal with domestic cases, said: "We are pleased that the government has finally decided to adopt the almost universally-accepted Acpo definition of domestic violence. However, while they may have amended the definition, they have not yet changed the evidence gateway criteria that determines whether victims actually receive the protection of legal advice and representation, when dealing with the consequences of their divorce or separation.

"The government has said today that mediation is unsuitable for victims of domestic violence – in which case they need to amend the gateway criteria before this bill goes back to the Commons.

"We do welcome this move on the definition, but the confusion surrounding where it leaves victims of domestic violence demonstrates that the Government needs to think again about the impact of its proposals."