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Jonathan Smithers

Partner, CooperBurnett

Court of Appeal: Legal aid regulations legally flawed in domestic violence cases

Court of Appeal: Legal aid regulations legally flawed in domestic violence cases


'Harsh test' exclude victims from accessing legal aid and 'frustrates the purposes of LASPO'

Government regulations for obtaining legal aid in cases of domestic violence have been declared legally flawed by the Court of Appeal.

Changes to the rules on evidence, introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), have prevented victims of domestic abuse from obtaining legal aid even when it is clear violence has occurred, according to Rights of Women (RoW) who brought the appeal.

In his judgment, Lord Justice Longmore - sitting with Lord Justice Kitchin and Lady Justice Macur - said that legal aid was a hallmark of a civilised society.

'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 dates 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.'

The potentially lifesaving ruling comes a year after the High Court rejected a legal challenge from charity Rights of Women over the lawfulness of new rules that require victims of domestic violence to provide a prescribed form of evidence in order to apply for family law legal aid.

RoW has monitored the impact of the regulations on the ability of women to access family law legal aid. Its latest survey found that women who do not have the required forms of evidence are faced with a stark choice: pay a solicitor privately, often causing them to get into debt; represent themselves and face their perpetrator in court; or do nothing and continue to be at risk of violence.

Emma Scott, director of the charity, said that for three years the strict evidential requirements had cut too many women off from the legal remedies that could keep them and their children safe.

'Today's judgment is an important recognition of women's real life experiences of domestic violence and means that more women affected by violence will have access to advice and representation in the family courts,' she added.

'The Court of Appeal has accepted our arguments that the fear of a perpetrator does not disappear after two years and recognised that forms of violence such as financial abuse are almost impossible for women to evidence.'

The Law Society's president, Jonathan Smithers, explained that cuts to legal aid have had radical consequences on the poorest and most vulnerable sectors of society.

'Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand,' he said.

'The harsh tests exclude victims from accessing legal aid for family law disputes against an abusive ex-partner or relative and are not what parliament intended.

'This ruling means that access to safety and justice will no longer be denied to the very people the government expressly sought to protect with its amendments to the regulations.'

A spokesperson for the Ministry of Justice said: 'We are pleased the court confirmed the Lord Chancellor did have the power to set domestic violence evidence requirements. We will now carefully consider the two findings made about the period of time for which evidence applies and concerns about victims of financial abuse.

'We are determined to ensure victims of domestic violence can get legal aid whenever they need it.

'We have made it easier for victims of domestic violence to obtain legal aid, by ensuring a broader range of evidence qualifies. This has contributed to a 19 per cent rise in the number of grants awarded.'