Women experiencing violence need legal advice
Emma Scott discusses Rights of Women's challenge to the lawfulness of evidence requirements preventing victims of domestic violence from qualifying for family legal aid
'I'm in a legal black hole. I don't qualify for legal aid and cannot afford a solicitor. So, after years of sexual and emotional abuse, I am left to deal with my son's father (the perpetrator) alone. How can this be right? Where do I go?'
Since 2011 we have been shouting loudly, sometimes literally, about the impact that the legal aid cuts are having on women affected by violence and their ability to access family law remedies. Women experiencing violence need specialist legal advice and representation to enable them to protect themselves and their children from violence; to divide joint assets and debts following relationship breakdown; to make arrangements for child contact; and to organise child maintenance.
The government acknowledges that domestic violence is 'often hidden away behind closed doors, with the victim suffering in silence' and has repeatedly promised to protect legal aid for those affected. Yet our research over the past five years has consistently confirmed that those victims do not qualify for family law legal aid because they do not have the pieces of paper required by the regulations. Our judicial review was therefore brought on behalf of those women to hold the government to account on its promise to make legal aid available to victims of domestic violence.
Our claim specifically challenged the lawfulness of regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 made under section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). We argued that the evidence requirements set out in regulation 33 were ultra vires LASPO as they substantially narrowed the statutory definition of domestic violence.
Lord Justice Longmore's judgment of 18 February is an important recognition of women's real-life experiences of domestic violence: 'I would conclude that… regulation 33 does frustrate 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.' The Court of Appeal accepted our arguments that the fear of, or risk from, a perpetrator does not disappear after two years and that forms of violence such as financial abuse, contained within the statutory definition, are almost impossible for women to evidence.
The judgment means that the list of domestic violence evidence set out in regulation 33 will no longer be subject to the 24-month time limit. The regulation must also be amended to ensure that family law legal aid is available to those who have experienced financial abuse. We are currently working with the Ministry of Justice to explore what forms of evidence are realistically available.
Despite the excitement of the Court of Appeal's judgment, we know that this case deals with only one of the retrogressive steps we have seen recently in women's access to justice. Other aspects of the legal aid scheme create a crevasse between women and their rights and remedies. While women remain cut off from the remedies the law affords them, our campaign continues.