New Zealand, England and Wales sign MOU to share family justice reform knowledge
Thu 12 Jun 2014
New Zealand has signed a Memorandum of Understanding with England and Wales allowing for regular information sharing about family justice reforms. Similar ...
New Zealand has signed a Memorandum of Understanding with England and Wales allowing for regular information sharing about family justice reforms.
Similar to New Zealand's reforms, England and Wales have recently overhauled their family justice systems, cutting legal aid and promoting family mediation with the aim of streamlining processes.
Justice Minister Judith Collins says "The MOU will allow our countries to share insights such as evaluation reports and information on successes and operational adjustments. Personal information, such as data about individual people and specific cases, will not be shared."
Legal aid
In the UK, concerns have been raised by legal professionals and women's charities about the impact of legal aid cuts. An exemption provided that despite the cuts, legal aid would still be available if victim/survivors could provide prescribed evidence that they had experienced domestic violence. (This evidence criteria was subsequently broadened to include undertakings, staying at a refuge and a report from a health professional.)
However research by Rights of Women and Women's Aid in 2013 found that women experiencing violence often could not satisfy the evidence criteria to access legal aid. The charities raised concerns this would keep women in abusive relationships because they were unable to afford a divorce, felt unable to represent themselves in court or worried they may lose their children. Some of the women who participated in the research reported losing children or facing significant debt because they could not access legal aid.
Follow-up research published in 2014 found that 46.4% of respondents who answered the question had taken no further action in relation to their family law problem as a result of not being able to apply for legal aid. The impacts of this included being trapped in abusive situations, experiencing further violence:
“i cant take him to court, i dont have the funds so myself and my children are stuck in an unhealthy marriage, he tells me to leave without children”
“I want to apply for a divorce but have been told it will be complex so I need a solicitor but I cannot afford to get one. I want to sort out child contact as my kids are at risk from my husband, but cannot afford to do that. I want to get a court order for payments so my children do not suffer because I cannot afford clothing for them, but without legal aid I cannot do this. This is having a detrimental impact on the children and myself. I am living in limbo because I cannot afford to do anything about it.”
Since cuts to legal aid were implemented, self-representation of parents in cases involving children has reportedly increased by 48%. Professionals report they are seeing victims of domestic violence face the people who have abused them in court in custody cases about their children. Harry Fletcher, an adviser to the UK union representing family court staff said, "The savage cuts to legal aid have had a disastrous impact on the justice system. Women and men are having to represent themselves, abused individuals are being cross-examined by their alleged abusers, and vulnerable children are suffering. The family courts system is facing meltdown."
In April 2014, the UK Ministry of Justice widened the evidence criteria for people experiencing violence to access legal aid. The Law Society is supporting a legal challenge brought by the Public Law Project on behalf of Rights of Women, over the lawfulness of the changes to legal aid.
Mediation
In the UK, from April 2014, people are legally required to attend a Mediation Information and Assessment Meeting (MIAM) before applying to go to court. A domestic violence exemption means this is not required if a victim/survivor can provide prescribed evidence of domestic violence, which includes:
- The perpetrator has been convicted of a domestic violence offence against them and that conviction is unspent
- The perpetrator has been given a police caution for a domestic violence offence against them within the past 2 years
- The perpetrator is on police bail for a domestic violence offence
- A Domestic Violence Protection Order has been made against the perpetrator within the past 2 years
- The perpetrator has a binding court order for a domestic violence offence which is in force or one had been made in the last 2 years
- There are ongoing criminal proceedings in respect of a domestic violence offence against them
- They have a protective injunction (such as a non-molestation or forced marriage protection order) in force or one had been made within the past 2 years
- The 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
- They have been referred to a Multi Agency Risk Assessment Conference (MARAC) as a victim of domestic violence and a plan is in place within the past 2 years
- 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
- They have been assessed by Social Services as experiencing or being at risk of domestic violence within the past 2 years
- 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
- They have a letter confirming they have been unable to access refuge due to insufficient accommodation
- They have evidence of having been referred to a domestic violence support service by a health professional.
The use of Family Dispute Resolution (FDR) has been criticised in New Zealand, with concerns about the safety of parents and children experiencing domestic violence and the ways whether someone has experienced domestic violence is assessed.
Justice Minister Judith Collins says the family justice changes are already having an impact. She said "For too long too many cases about how children will be cared for have been decided in court when they don’t need to be. It’s better for children and their families to avoid the conflict, delays and expense of going to court where possible."
UK research:
Public experiences of and attitudes towards the family justice system, UK Ministry of Justice, June 2014 presents findings from the 2012/13 Crime Survey for England and Wales (CSEW) examining public attitudes and experiences of the family justice system, including mediation.
Evidencing domestic violence: a year on (Rights of Women, March 2014) provides more information on the impact of the UK legal aid regulations for women experiencing violence.
Evidencing domestic violence: a barrier to family law legal aid (Rights of Women, October 2013) examines the impact of the domestic violence evidence gateway on survivors of domestic violence to understand its impact on women’s ability to access advice and representation in private family law cases.
UK commentary:
Various articles in Family Law, 44: 581-756, May. Special Issue: Collected Papers of the 2014 Family Justice Interdisciplinary Conference: Family Justice redefined?
UK media:
Only half of adults are aware of mediation, MoJ reports, Stowe Family Law, 12.06.2014
Family Court changes “must take account of risk of domestic violence”, Women's Aid, 22.04.2014
Legal aid cuts leave family courts in chaos, experts say, The Guardian, 29.03.2014
Got a problem? Mediators are waiting for your call, The Independent, 16.01.2012
NZ Media:
New MOU signed to improve family justice, Beehive, 10.06.2014
More choice in family justice mediators on offer, Beehive, 04.06.2014
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