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    The Hidden Cost of Confidentiality for Cohabitees

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    The Hidden Cost of Confidentiality for Cohabitees

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    Access to justice is not confined to the ability to receive timely and affordable legal advice, but must allow those seeking to rely on Her Majesty’s Court and Tribunals Service (HMCTS) the ability to do so without placing themselves in harm’s way. Otherwise, the risk may simply outweigh the reward.

    Thankfully there exist mechanisms within Family Proceedings for parties’ to withhold their address from their opponent, whilst divulging this information to the Court. A simple one page form provides them with the comfort that, in pursuing what is in all likelihood a necessary and meritorious application, they will not need to disclose information about their current whereabouts.

    It is not unusual for those fleeing abuse, persecution, forced marriage and female genital mutilation (to name but a few), to want to withhold their address from their perpetrator(s) and those who may otherwise wish to cause them harm. If it was a prerequisite to making an application in the Family Court that parties’ disclose their address, notwithstanding the many valid reasons for withholding this information, it would discourage huge swathes of vulnerable people from ever seeking help.

    The number of unmarried couples in the England is estimated at 3,012,000 by the Office of National Statistics as of 2020. If the parties’ own property and a dispute arises, their remedy is likely to be under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). In doing so, they would be required to apply in the Civil Court and would not be able to rely upon the warm embrace of the Family Court, if they wish to withhold their address.

    They are instead bound by Civil Procedure Rule, Practice Direction 16.2.2 which is unequivocal in that the claim form and therefore the basis of their application “must include an address at which the claimant resides or carries on business. This paragraph applies even though the claimant’s address for service is the business address of [their] solicitor”.
    PD 16.2.5 makes it clear the Court will retain the claim form after issue and that it will not be served until either (a) The Claimant supplies their address or (b) the Court dispenses with the requirement that they provide this information.

    This puts those who seek an Order to define their share in the family home or an Order for Sale under TOLATA, in the unenviable position of deciding between their desire for justice and their desire to protect themselves from harm. A repugnant choice for anyone to have to make.

    There is sanctuary however, in the form of a dispensation (CPR – Part 23) in which the Claimant can (as set out above) seek permission from the Court to include for instance a ‘care of address’. This involves a Claimant in effect making a ‘claim before the claim’, as they are required to apply to the Court to prevent publication of their personal information. In doing so, they are competing against the requirements for ‘open justice’.

    A Claimant would then be required to put together an application (on a Form N244), pay a Court fee of £100 and provide a Witness Statement, complete with a Statement of Truth and (one must assume) exhibit evidence attesting to them having suffered domestic abuse, stalking and/or harassment. The costs of which could well be substantial.

    A dispensation of course may not be granted by the Court in any event and the Claimant is then once again faced with the stark choice of either seeking justice or seeking to keep their whereabouts confidential, from someone who may be intent on causing them harm.

    Even is a dispensation is granted, the scope of that dispensation is fundamental as the rules of Disclosure and Inspection of Documents (PD31) are far reaching. Without careful consideration a Claimant will soon find themselves making a claim to withhold inspection/disclosure of documents (PD 31.19), which could otherwise disclose their whereabouts and could (in a cruel twist of irony) include the very application made to Court to dispense with the need to include a residential/business address on the Claim Form.

    Huge strides are being made in the protection of victims of domestic abuse and violence as they navigate their way through the Courts. The Domestic Abuse Act 2021, due to come into force during the 2021/2022 parliamentary session, goes a long way to addressing many of the shortcomings of the Court service, in adequately safeguarding victims of abuse. The Act includes special measures in civil proceedings for victims of domestic abuse (s.64), but more needs to be done.

    It would appear that the fact that this has not been addressed in Parliament or the revisions/updates to the Civil Procedure Rules, is an oversight. It cannot be right that victims of abuse are put through this rigmarole, simply for the privilege of making an application to Court without fear of violent and abusive repercussions, which may inevitably follow if they are forced to disclose their address. This is even more offensive given the rise in domestic abuse and domestic homicides during the pandemic.

    With the number of cohabiting couples on the rise and therefore an increasing reliance upon the Civil Courts to adjudicate in disputes, it is not hard to envisage that more people will be presented with the daunting choice of access to justice or the preservation of life.

    Stewart Henderson
    Solicitor

    Share Your Story

    In this series we are using the brave stories of domestic abuse survivors to bring hope to others currently facing abuse. Their stories are sadly not unique, the victims share them willingly to help others get the support they did.
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    By Fiona Bawden, Times Online (8th May 2007)

    “Steve Connor, a student at City Law School, is a man on a mission. Six years ago he was a fairly directionless 27-year-old. Today, as well as taking the Bar Vocational Course, he is chairman of the National Centre for Domestic Violence, a ground-breaking organisation that he dragged into existence after a friend could not get legal help to protect her from an abusive partner.

    Connor’s route to the Bar has been circuitous. In 2001 he returned from a year in Australia (he says that he would not dignify describing it as a gap year), and took a job as a process server in South London. The job (“I just saw it advertised in the paper”) was not quite as dull as it sounds. On one occasion he was threatened with a machete, on another, he was nearly stabbed by a man he had arranged to meet on Clapham Common to serve with a non-molestation order: “He’d seemed really friendly on the phone…”

    The turning point in his life came when a friend, who was being abused by her partner, turned to him for support. Connor went with her to the police. She did not want to press criminal charges so the police suggested that she visit a solicitor to take out a civil injunction. “We must have seen 12 solicitors in a morning. We just went from one to the next to the next to the next. Everyone was very eager to help until we sat down to fill in the forms for the legal aid means test,” he says. The woman, who had a small child, did not qualify for public funding. But, Connor says, her financial situation as it appeared on paper did not bear any relation to her financial situation in reality. “She had a part-time job and she and her partner owned their home. Yet she didn’t have any money. Her boyfriend was very controlling and controlled all the money; he kept the chequebooks and didn’t let her have access to the bank account.”

    The injustice of the situation got under Connor’s skin. “I just couldn’t believe that there was no help available to people who did not qualify for public funds but could not afford to pay.

    I just kept feeling that this must be able to be sorted if only someone would address it.”That “someone” turned out to be him.

    In 2002, thanks entirely to Connor’s doggedness, the London Centre for Domestic Violence was formed. It started out with him and a friend, but is now a national organisation, covering 27 counties, and has helped approximately 10,000 victims last year to take out injunctions against their partners.

    NCDV now has nine full-time staff, 12 permanent volunteers and has trained over 5000 law and other students as McKenzie Friends to accompany unrepresented victims into court. We have also trained over 8000 police officers in civil remedies available regarding domestic violence. The National Centre for Domestic Violence (NCDV) has branches in London, Guildford and Manchester and is on track to have branches in 16 areas within the next two years.

    NCDV specialises exclusively in domestic violence work and could be characterised as a cross between McDonald’s and Claims Direct. The high degree of specialisation means that its processes are streamlined: clients can be seen quickly and the work is done speedily and cheaply. “Sometimes, we will have one of our trained McKenzie Friends at a court doing 10 applications in one day,” Connor says.

    Clients are not charged for the service. NCDV staff take an initial statement: clients who qualify for legal aid are referred to a local firm; those that don’t get free help from the centre itself. It runs on a shoestring, heavily reliant on volunteers and capping staff salaries at £18,000 a year.

    Steve expects to qualify as a barrister this summer and hopes that having a formal legal qualification will give the centre added clout. “We are already acknowledged as experts and consulted at a high level, so I thought it would be helpful if I could back that up by being able to say I’m a barrister,” he says. He is just about to complete a one-year full-time BVC course at the City Law School (formerly the Inns of Court Law School) and, all being well, should be called to the Bar in July. Although Connor sees his long-term future as a barrister, he says that he has no immediate plans to practise. “I want to get NCDV running on a fully national level. Then I may take a step back and have a career at the Bar.”