One in five women in Ireland experience domestic abuse. Given the prevalence and universal condemnation of domestic violence, it is remarkable how those affected by it still face financial barriers in seeking legal protection.
A simple measure to legally empower people experiencing such abuse is available without the need for new legislation. Flac - Free Legal Advice Centres - contends that the state Legal Aid Board can and should automatically end its requirement for people experiencing domestic abuse to make a financial contribution before they receive legal aid or advice.
The Tánaiste and Minister for Justice Frances Fitzgerald’s commitment to tackling domestic abuse is undeniable. In a recent address to Barnardos, she spoke directly to perpetrators of violence: “You are shameful in your cowardice. As Minister for Justice, I will not rest until you stop”. In introducing the new provisions of the Domestic Violence Bill, she noted that “domestic violence persists as true horror in too many homes in 21st century Ireland.”
The Minister acknowledged that despite some improvements, there is still much work to be done. She observed that domestic violence has no innocent bystanders - “when we turn away we are complicit” - and that the people affected need help; as she said, “it is about empowerment and it’s about support and finding out what we can do to help stop domestic violence and to support people who are caught up in this most devastating of human experiences”.
These are welcome words. Court-ordered legal remedies, such as Safety, Protection and Barring Orders and the enhanced protections contained in the Domestic Violence Bill, are key tools in empowering and protecting people facing domestic violence. Civil legal aid services play a vital role in delivering access to the courts and through that, to the protections contained in the Bill. However, there are financial barriers to this.
Many people will be surprised to learn that civil legal aid is not actually free, despite a stringent means test. The Legal Aid Board, a statutory body that administers the civil legal aid scheme, requires people applying for legal aid or advice to make what is termed a “financial contribution”. While contributions are not required in very limited cases, such as where the state is seeking to take a child into care, most other cases including domestic violence require the applicant to pay a contribution, unless fully or partially waived on hardship grounds.
It must be acknowledged that the Legal Aid Board has long recognised the particular needs of people experiencing domestic violence. It prioritises these cases so that applicants can speak to a solicitor quickly. However, the minimum contribution, even for people on social welfare, is €30 for legal advice and €130 for legal aid. Actual contributions will often be significantly higher.
This €130 equates to two-thirds of a weekly basic social welfare payment, meaning that legal aid is unaffordable to many in receipt of social welfare. Organisations which work to stop domestic violence say the fees put legal aid out of reach for many people reliant on state supports. Some groups have reported instances where they have had to make requests to the Society of St Vincent de Paul on behalf of victims to pay the minimum fee.
Other people who might appear financially better-off may also not be able to afford this vital assistance. Financial abuse is a common ploy to gain power and control, whereby the abused person has limited access to family funds.
The Civil Legal Aid Act 1995 as amended allows the Board to waive fees on the ground that a failure to do so would cause undue hardship to the applicant. It is unclear how the Board interprets “undue hardship”. However such waivers are not automatically applied in cases involving domestic abuse.
Additionally, applicants for legal aid may be unaware that they can apply for a waiver. And even if they do apply for one, there is no guarantee they will get it. Moreover, the Legal Aid Board solicitor will not file court proceedings until there is a decision on the waiver, but immediate court protection is often crucial for people experiencing domestic violence.
International human rights bodies have voiced concern about the cost of legal aid services in domestic violence situations. In July 2015, the UN’s expert Committee on Economic, Social and Cultural Rights recommended that Ireland strengthen legal aid supports in this area. Flac has also raised this issue with the UN Committee on the Elimination of Discrimination against Women, which will examine Ireland in February 2017.
The Government is currently progressing a range of actions, including the Domestic Violence Bill, to allow for ratification of the Istanbul Convention, a landmark Council of Europe treaty to fight domestic and sexual violence. This Convention provides for a right to free legal aid for victims of domestic violence. However, the Irish Government’s “Istanbul Convention Action Plan”, which details the legal and administrative measures required for ratification, is silent on the issue of civil legal aid.
The Legal Aid Board has the power to end the requirement for a financial contribution in all cases involving domestic violence. Its new chair, Mr Philip O’Leary, has announced that the Board is to review financial eligibility criteria for civil legal aid. No review is needed to enable the Board to abolish the financial contribution in domestic abuse cases.
Flac believes that no person experiencing domestic violence should be discouraged from accessing essential legal aid on financial grounds. Abolishing fees in cases of domestic violence would help realise the Tánaiste’s vision of supporting and empowering people affected by domestic violence.
Eilis Barry is Chief Executive of Flac (Free Legal Advice Centres) which promotes equal access to justice for all - read more at www.flac.ie