In 2014 Rights of Women launched a judicial review challenging what we say were dangerously restrictive evidential requirements imposed on domestic violence survivors in order to access family law legal aid. Having lost at first instance we appealed and argued our case again before the Court of Appeal on 28 January 2016. The Court of Appeal agreed with us, handing down judgment on Thursday 18 February stating that the evidential test contained in regulation 33 of the legal aid regulations are so restrictive as to make it unlawful. To understand the potentially huge consequences of the Court of Appeal’s decision, it is necessary to consider quite how harmful the regulations now overturned were.
Legal aid is a lifeline for victims of domestic violence, enabling them to escape from abusive relationships, protect their children, and manage their finances. Without access to legal advice and representation, a woman trying to leave a violent relationship has two options – to represent herself in court against her perpetrator, or to continue living under abuse.
Our research, Evidencing domestic violence, demonstrates that over 50% of women experiencing violence take no action in relation to their family law problem as a result of not being able to access legal aid, leaving them unable to escape from violent relationships or rebuild their and their children’s lives after separation.
Recognising the importance of access to justice for women and children experiencing abuse, the government promised that legal aid for family law cases would not be lost to those affected by domestic violence. Indeed, that promise was enshrined in statute. However, the legal aid regulations introduced in April 2013 required applicants for family law legal aid to provide evidence of domestic violence. The list of acceptable forms of evidence was dangerously restrictive, focusing on evidence from statutory agencies or on remedies which we know do not reflect the reality of the lives of women experiencing violence. The test made it extremely difficult for women to evidence sexual, psychological or emotional abuse and impossible to evidence financial abuse. It also placed an arbitrary two year time limit on evidence, which simply did not reflect what we know about ongoing risks to women and children. Our research shows that 40% of women who were experiencing domestic violence did not have the evidence required to be granted legal aid.
In his judgment handed down in the Court of Appeal last week Lord Justice Longmore said: ‘Legal aid is one of the hallmarks of a civilised society.’
‘I would conclude that… regulation 33 does frustrate the purposes of LASPO in so far as it imposes a requirement that the verification of the domestic violence has to be dated within a period of 24 months before the application for legal aid and, indeed, insofar as it makes no provision for victims of financial abuse.’
On behalf of all women affected by violence who need to access their family law remedies, we are thrilled by the outcome of this case. For nearly three years we have been campaigning tirelessly against these harmful regulations. This important judgment will undoubtedly mean that more women affected by violence will have access to vital legal advice and representation in the family courts.
Whilst the 24 month time limit is to be removed from the regulations, we have yet to see how the Ministry of Justice will address the inclusion of financial abuse within the evidence criteria. We hope to work with the Ministry of Justice and other women’s organisations to ensure that the amendments reflect the reality of the lives of women affected by domestic violence.
Whilst the domestic violence evidence criteria was one of the major barriers to access to justice for domestic violence survivors, there are other aspects of the regulations which remain seriously problematic. Even women who have the required evidence of domestic violence have to pass an unfairly stringent means test in order to be granted legal aid. For many women the way in which their capital, income and living costs are assessed has little to no bearing on the reality of their financial situations. The gap between those who are financially eligible for legal aid and those who can afford to pay privately is huge.
Finally, due to the insurmountable pressures placed on legal aid law practitioners, advice deserts have meant that far too many women will find that whilst they are eligible for legal aid, there are simply no services available.
Whilst there are still significant barriers to women’s access to justice, we will continue to lobby and campaign until all women are safe.