Domestic violence challenge on legal aid fails
The High Court has rejected a challenge to the legality of government changes to legal aid for victims of domestic violence.
The challenge, brought by the Public Law Project on behalf of Rights of Women, and supported by the Law Society, centred around rules introduced in April 2013 requiring victims of domestic violence to provide a prescribed form of evidence in order to apply for family law legal aid.
Some of the forms of evidence are subject to a 24-month time limit, despite the fact that perpetrators may remain a lifelong threat.
In the judgment today, Mrs Justice Lang (pictured) said she considered the lord chancellor’s efforts ‘to ensure that the domestic violence exception was strictly confined to its intended scope and not exploited as a route to obtaining legal aid’ were consistent with the statutory purpose of reducing the scope of legal aid.
Despite the ‘justifiable criticisms’ of regulation 33 - which specifies the type of supporting evidence of domestic violence which must be provided in support of an application for legal aid - Lang J did not consider the lord chancellor’s chosen method of establishing eligibility was an exercise of discretion that went so far as to thwart or frustrate the purpose of the Legal Aid, Sentencing and Punishment of Offenders Act.
‘It was a legitimate means of giving effect to the act’s intention to take family law proceedings outside the scope of legal aid, whilst preserving legal aid for the exceptional category of victims of domestic violence in need of protection in family law proceedings,’ she said.
‘Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the [lord chancellor], and ultimately parliament, to address.’
Mrs Justice Lang rejected the claim that the lord chancellor exceeded his powers under LASPO 2012 when making regulation 33. Lord Justice Fulford agreed.
Law Society president Andrew Caplen expressed his disappointment at the ruling. ‘This change, introduced by the government, is yet another example of the draconian cuts affecting vulnerable clients,’ he said. ‘The over-strict tests required to bring evidence to satisfy the broader statutory meaning of domestic violence are not what parliament intended.
‘Without legal aid women are being forced to face their perpetrators in court without legal representation. Victims of domestic violence should not be excluded from accessing legal aid for family law disputes against an abusive ex-partner or relative because of these unrealistic regulations.
‘The Law Society is very concerned that many victims of domestic abuse will continue to be unable to obtain legal aid to help them break free from abusive relationships. We will continue to lobby parliament to make changes to ensure the victims of abuse can get the help they need.’
Emma Scott, director of Rights of Women, said: ‘We are devastated by the outcome of our legal challenge. This decision means that women who remain at risk of violence will continue to be denied access to vital legal advice and representation in family cases.
‘Our most recent research shows that about 40% of women affected by violence do not have the required evidence in order to apply for family law legal aid.
‘We are applying for permission to appeal this decision and remain committed to campaigning on this issue in order to hold the government to account on their promise to continue to make legal aid available to victims of domestic violence.’