The government faces a legal challenge to the lawfulness of legal aid reforms which the claimants say prevent domestic violence victims getting financial help in family law cases.

The action has been brought by two charities - the Public Law Project and Rights of Women - with the support of the Law Society, which has provided indemnity against adverse costs.

On 1 April the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect removing legal aid for the majority of private family law matters.

Accompanying it, the Civil Legal Aid (Procedure) Regulations 2012 introduced criteria making legal aid available for those affected by domestic violence.

However the groups claim the evidential requirements to prove domestic violence are too narrow and exclude many women even where it is clear there has been violence or that there is an ongoing risk.

They argue that the regulations do not give effect to the intention of parliament in LASPO.

The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional between individuals who are associated with each other.

However some of these forms of violence would not fall into the prescriptive evidential requirement. 

In addition, the evidence provision in many cases has a 24-month time limit and the charities argue that it is too restrictive as perpetrators may remain a lifelong threat.

A survey carried out last year by Rights of Women, Women’s Aid and Welsh Women’s Aid showed that half of all women surveyed who had experienced or were experiencing domestic violence did not have the prescribed forms of evidence to access family law legal aid.

Of those 61% took no action in relation to their family law problem as a result of not being able to get legal aid.

The charities claim the regulations are ultra vires and infringe Articles 6 and 8 of the Human Rights Act and have asked the High Court to quash them.
Director of Rights of Women Emma Scott said: ‘This legal action is taken on behalf of those women in order to hold the government to account on their promise to continue to make family law legal aid available to victims of domestic violence.’
Law Society president Nicholas Fluck said: ‘The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. 

‘It is vital that survivors of domestic abuse can bring evidence to satisfy the broader statutory meaning of domestic violence, not the over-strict tests required by the regulations as they now stand.’

A spokesman for the Ministry of Justice said: ‘Where people have suffered domestic violence legal aid must be available to help them break free from the abusive relationship.’ He said the ministry has had to take difficult decisions to reduce the cost of legal aid to make it ‘sustainable and targeted where most needed’.

He said the ministry's approach to legal aid funding in these cases is ‘proportionate and justified, and we will be making that case in court’.