Family Law Titles
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'… any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.'The essence of Lang J’s decision can be found at:
' I consider that it was consistent with the statutory purpose of reducing the scope of legal aid, and removing it from private family law proceedings, that the Defendant would seek to ensure that the domestic violence exception was strictly confined to its intended scope and not exploited as a route to obtaining legal aid for family law proceedings which had been taken out of scope for most people.'This gives Lang J’s answer to the real question which the case raises: namely what is the intended scope of domestic violence legal aid (as viewed as a combination of the Act and its delegated legislation)? How much was its ‘exception’ from the general exclusionary statutory scheme intended to be in line with the general aim of LASPO 2012, that is to exclude civil legal aid from most categories of family proceedings? How far did Parliament intend that there should be restrictions on grant of legal aid only to certain categories of domestic violence; and if so, is the delegated legislation in CLAP Regs 2012 consistent with what Parliament intended?
' … Although the Court may conclude that delegated legislation is ultra vires, despite approval by Parliament, it must decline to intervene where, in effect, a claimant asks it to enter the political arena and substitute its views for those of Parliament. In my view, that is what the Claimant invites the Court to do in this case. As Lord Bingham explained in R (Countryside Alliance & Ors) v Attorney General & Ors  1 AC 719 (a human rights challenge to the hunting ban) at , “[t]he democratic process is liable to be subverted, if on a question of moral and political judgment, opponents of the Act achieve through the courts that which they could not achieve in Parliament”.'She concluded in this case that Parliament had had the opportunity to review CLAP Regs 2013 (by the negative resolution procedure (para )), and no point was taken as to them in either House, save a Motion of Regret in the House of Lords. The court was entitled to consider this delegated legislation history and must respect Parliamentary scrutiny before it could hold a statutory instrument unlawful (Bank Mellat v Her Majesty's Treasury (No 2) (Liberty intervening)  UKSC 39 para  (but see further below)).
Explains the changes to the way courts deal with domestic violence
' … InAirey v Ireland [(1979) 2 EHHR 533],having decided that there was a breach of Art 6(1), the ECtHR went on to hold that the applicant was denied an "effectively accessible" legal procedure to enable her to petition for a judicial separation and that this also constituted a breach of Art 8.'Does the relative complexity of the statutory provisions truly make courts accessible, for domestic violence victims, within Airey terms; or is a breach of Art 8 implied here (breaches of Human Rights Act 1998, but not European Convention 1950, were refused permission by the court (para )?
' … the interference in question is necessary in a democratic society, raising the familiar questions whether there is a pressing social need for it and whether it is proportionate to the legitimate aim pursued. There are of course many in
England and Wales who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after intense debate a majority of the country's democratically-elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue…. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.'