Thousands misusing abuse orders to get legal aid, says parenting charity
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- 03 Jul 2021
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Thousands of parents falsely claim domestic abuse in order to access legal aid and stop estranged partners from seeing their children, a shared parenting charity claims.
Families Need Fathers says parents are being encouraged by some solicitors to file for non-molestation orders - injunctions used in urgent abuse cases.
New figures show a 30% rise in orders made after legal aid was axed in everything but abuse cases in family courts in 2012.
Some 25,700 were made in England and Wales in 2017, and 6,699 in the first quarter of 2018.
The changes to legal aid qualification in England and Wales were designed to reduce the number of cases in family courts, with separating couples being encouraged to attend mediation sessions instead, and to cut the legal aid bill.
But charity case workers say they are seeing "thousands" of parents, mainly fathers, who have been made subject to these orders for things that they do not consider to be domestic abuse.
These could be angry comments thrown in the midst of the break-up or dealing with child access arrangements or unpleasant text messages, they say.
'False allegations'
The charity suspects that solicitors' firms are talking parents into seeking such orders because it enables them to qualify for legal aid, from which both the legal profession and the complainant could benefit.
A spokesman for the charity said: "We're getting a lot of people coming to us talking about false allegations, whether it's grossly exaggerating events or even completely fabricating them.
"And yet the impact of the order can take a parent down a path that can be very difficult to return from."
Jerry Karlin, chairman of Families Need Fathers, said the result of the government's "well-intended but ill-conceived changes" to the family courts system was a 30% increase in non-molestation orders (NMOs) to 25,000 a year.
There had also a been 20% rise in private family court applications over the last two years, he added.
"These (NMOs) are used in allegations of abuse and they don't have to be true to obtain access to legal aid."
"Non-molestation orders have gone up by several hundred per cent since the legal aid changes in some districts," he added.
NMOs work like injunctions and are designed to protect domestic abuse victims from further harm in emergency situations.
The charity stresses that they are useful in genuine cases of abuse, but is concerned that the way they are administered leaves them open to exploitation. For example
-They are often granted in the absence of the person being accused of abuse (the respondent) and without accusations of domestic abuse being proven
-The making of an order then also enables the complainant to draw on thousands of pounds in legal aid which can also be used in any subsequent family law cases
-The respondent would not be automatically entitled to legal aid, however, and often has to represent themselves
-The level of evidence required is fairly low and can relate to claims about verbal abuse, unwanted text messages or emails
In some regions of England and Wales the increase has been as much as 900%. In others there has been a 150% rise, according to information obtained by Families Need Fathers.
'Gross exaggerations'
Once an order is made, there is a brief "return" hearing two weeks later but the case is then usually adjourned for about six months.
During this time every agency related to the the respondent and his family, such as the police, school and local council, is notified.
This can lead not only to the parent being physically separated from their children but being ostracised by the agencies involved with them.
After about six months, usually, a fact-finding hearing is held at which the evidence of the applicant's claim is meant to be heard.
But quite often, just as the initial order is made in the absence of the respondent, the fact-finding hearing is held in their absence as well.
A judgement is then made on whether the order should continue.
At this point it can be used to restrict a parent from spending time with his or her child and to delay the process of arranging contact.
The outgoing president of the High Court's family division, Sir James Munby, described false allegations as a "vice in the system".
He also said that the judiciary had recently realised that "a wrongly granted without notice order sets the tone of proceedings thereafter".
He tried to crack down on the use of such orders, reminding courts that it was for the applicant to prove their claims rather than for the respondent to disprove them.
His successor, Sir Andrew McFarlane, who is taking over the role in July, appeared to back some of the charity's claims on the harmful effects of such orders in a recent speech.
He called for the facts of a case to be established much more quickly than happens at present.
Whether there are serious domestic abuse allegations or not, it does not help either parent or the children for the hearing of the contested factual issues to be adjourned again and again, he said.
And Sir Andrew cited a case in which a father was subject to a continuing non-molestation injunction preventing him from having any contact with his children for a period of years.
"That injunction had been based upon the untested and contested factual allegations which were never tried," he said.
"Until the factual context is clarified and determined by the court, the arrangements for the children cannot move on and develop in a way which reflects the risk or lack of risk, arising from the facts as they are found to be," he added.
'Greater awareness'
A spokesman for the Ministry of Justice said there may be various reasons for an increase in the issuing of such orders - including greater awareness of domestic abuse and of how it can be addressed.
He added: "Non-molestation orders are an important means of protecting individuals in abusive situations.
"When deciding whether to grant a non-molestation order, the judge will consider all the circumstances, including the need to secure the health, safety and wellbeing of the applicant and any children."
The court has the power to discharge an order if the respondent makes an application and this is found to be justified.
Domestic abuse charity Women's Aid said the rise in NMOs needed to be put in the context of statistics showing record numbers of domestic-abuse related incidents.
The number rose from 796,935 in 2011-12 to 1.1 million in 2016-17 in England and Wales.
Their spokeswoman said: "We know that the police often recommend to victims that they seek civil orders to keep them safe while their case may be going to the CPS [Crown Prosecution Service]
"Or if the victim does not want to proceed with a criminal justice case, you would expect to see more of an increase if the police are seeing an increase in domestic abuse-related incidents."
