Ray Of Light For Victims Of Domestic Violence
When the Coalition Government was looking for ways to cut back public spending, the budget for civil legal aid presented itself as a very tempting target. After a sustained preliminary bombardment of (largely fictitious) stories about fat cat lawyers, Parliament passed the Legal Aid, Sentencing and Punishment of Offenders Act, 2012; a substantial statute known to all in the business as LASPO.
LASPO did many things, one of which was to largely remove legal aid for disputes over children and money in family proceedings
However, legal aid was still to be available for victims of domestic violence
who wanted an injunction or who were involved in family proceedings in which the perpetrator of the violence was the other party.
Most modern statutes lay out the bare bones of the law leaving the flesh to be added by so called secondary legislation. This secondary legislation is contained in detailed laws called statutory instruments.
Many people think statutory instruments are overused by Governments. This matters because statutory instruments are seldom opposed or debated. Indeed, my suspicion is that most are not even read by MPs before they become law.
I guess most citizens who are not lawyers would be surprised to learn that the vast majority of laws by which they are governed are not read or considered by their MP.
Some of the secondary legislation flowing from LASPO was in fact debated, but it nevertheless became law and from April 2013, when it came into force, it was much harder to get legal aid a family case
Some of the regulations made for LASPO set out evidence which victims of domestic violence HAD to produce before they could be considered for legal aid. This was an additional hurdle to the existing means tests.These regulations were slightly changed during 2013 and a new set came in to force in April 2014.
The regulations are complex but in essence they provide that, with only a few exceptions, an applicant for legal aid must produce evidence to verify that the domestic violence complained of occurred within the 24 month period before the application for legal aid was made.
An organisation called Rights of Women
applied for this regulation to be judicially reviewed and struck down on the basis that it defeated the fundamental aim of LASPO that victims of domestic violence should be able to get legal aid.
In effect they were arguing that the regulations took away with one hand what LASPO gave with the other.
They lost in the High Court but on February 18th 2016, the three judges of the Court of Appeal who heard the case unanimously agreed with the challenge by Rights of Women.
The result is that the LASPO regulations are invalid in so far as they require verifications of domestic violence to be given within a 24 month period before the legal aid application.
The judges went further and held the regulations were also deficient in that they do not cater for victims who have suffered financial abuse
; this form of control now comes within the definition of domestic abuse or violence.
It might be hard in the abstract to understand why the regulations as they are drafted are such a problem.
In his lengthy judgement, Lord Justice Longmore gave some examples, one of which deserves quoting in full because it brings the issue to life. It concerns a woman he calls M. “M was a victim of serious physical, sexual and psychological abuse (rape, strangulation, beating, other sexual assault, controlling/coercive behaviour) from her husband and father of two of her children. She had a variety of objective forms of evidence within regulation 33 but all outside 24 month time limit by a few months. Exceptional funding under section 10 was requested and refused. M suffered a relapse of her psychological condition by reason of attending proceedings unrepresented against her ex-husband who sought contact with children more than 2 years later. Only then was she able to obtain a medical report and, as a result of that report, obtain legal aid. The objective evidence M had at the time of her legal aid application, none of which entitled her to legal aid under regulation 33 was as follows:-
- a caution for a domestic violence offence – but this was more than 24 months old;
- the allegation of rape in September 2010 which was reported to the police, but in respect of which no charges were brought – police reports/call-outs do not fall within regulation 33;
- the police had referred her to a MARAC who had assessed her as high risk; the report from November 2010 was more than 24 months old;
- social services Child in Need reports regarding the children dating from June 2011, the latest of which was 25 months old;
- counselling at a Rape Crisis centre which ended in June 2011 and was more than 24 months earlier;
- findings of fact made in the divorce proceedings in 2010 more than 24 months before the application was made;
- evidence from her former outreach worker from the local children’s centre – there is no provision for this in regulation 33; and
- a CAFCASS report dated 2nd July 2013 prepared in the Claimant’s ongoing proceedings for child contact. This detailed the history of domestic violence and assessed the risks to the children: its conclusion was that it would not be in the children’s best interests to progress contact. There is no provision for CAFCASS reports in regulation 33.”
None of the evidence M had available could get her through the harsh obstacle of the regulations.
I know from my daily professional experiences that there are many people like M who are currently denied legal aid.
I am delighted that the Court of Appeal has recognised that the strict evidential requirements for legal aid were a barrier to the clearly expressed will of Parliament that victims of domestic violence should be able to access legal advice and representation. I hope the Government now acts quickly to issue new regulations so that more victims can be helped and protected as Parliament intended.
The ball now passes back to the Ministry of Justice who will have to decide either to appeal the decision to the Supreme Court or to attempt to draft new, less restrictive, regulations which meet the objections of the Court of Appeal.Simpson Millar will keep you posted on what happens next, in the meantime please consult us if you are the victim of domestic abuse. We are very likely to be able to help. Make the decision not to live in fear any longer and make an appointment now.