On 5 December, the Ministry of Justice announced that it would relax the rules on the evidence that must be provided legal aid to be granted in cases of domestic violence or child abuse.
Under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), virtually all private family law issues were removed from the scope of legal aid. This included parental separation and child contact cases: cases which determine who children will live with, who will have parental responsibility for them, whether and how they will have contact with other family members, their standard of living and any financial support they should get.
Under LASPO there was an exemption allowing people to get legal aid in cases where:
- The person seeking legal aid has evidence that they are, or are at risk of being, a victim of domestic violence and the alleged perpetrator of that violence is the person who would be the ‘other party’ if proceedings were commenced in family court
- Where the person seeking legal aid has evidence that the child who would be the subject of proceedings is at risk from the other party to proceedings.
However, both of these exemptions would only apply if specific forms of evidence could be provided, as outlined in Regulations 33 and 34 of The Civil Legal Aid (Procedure) Regulations 2012. This list of eligible forms of evidence included unspent convictions, police cautions, reports from medical professionals, and letters from social services, but was widely criticised for being too restrictive. Equally problematically, the evidence had tight time limits – it had to be from within the previous 24 months.
This left extremely vulnerable women and children in situations where they are at risk. It has resulted in large numbers of women confronting abusive ex-partners without representation. Although it was made clear by the government in 2012 that ‘family cases where a child is at risk of abuse’ would fall into scope of legal aid, Coram’s Child Law Advice Service often provides legal advice in cases where a child is at risk of abuse but the case is not within scope of legal aid.
Following legal action from the charity Rights of Women and the Law Society, this time limit was extended to five years for domestic violence cases, but remained at up to two years in cases relating to the abuse of children. Rights of Women found that 40% of women survivors could not meet the new legal aid domestic violence evidence requirements, and were forced to face their abusers in court themselves.
Over 20 months later, the Ministry of Justice announced that new rules removing the time limit and allowing admission of fresh categories of evidence will come into force on 8 January 2018. The five-year and two-year limits will be removed altogether and the range of documents accepted as evidence of abuse will be widened to include statements from domestic violence support organisations and housing support officers. In child protection cases, the accepted evidence has broadened to include an arrest for a child abuse offence, even if that arrest has not yet led to a conviction or a caution. Legal aid can be withdrawn (or in some cases revoked) if, for example, the grant relied upon evidence of police bail that did not result in any subsequent charge.
These changes are welcome news and will help children living in desperate situations to access justice. It will also help large numbers of women and some men who have been deprived of legal advice and representation in family court disputes over custody and contact with children. The justice minister, Dominic Raab, stated that the changes would “make sure that vulnerable women and children get legal support so their voice is properly heard in court.”
However, concerns remain. Anyone with the care of a child may seek to protect them: for example, a grandmother may seek prevent the father of a child in her care from having contact. However, not everyone will be eligible for legal aid, because it will only be granted where the abuser is the other party to proceedings. Therefore, for example, if proceedings are brought by a father against his ex-wife because her new partner has been abusing the child, the person seeking to protect the child through the courts is not eligible for legal aid. This is a serious omission and clearly not in keeping with the stated intentions of LASPO.
Points for Practice
- From 8 January 2018, evidence provided by domestic violence support organisations or housing support officers as part of an application for legal aid in disputed family court cases should include:
- a statement that in the letter writer’s reasonable professional opinion, the applicant is a victim of domestic violence or at risk of being a victim;
- the matters relied on in support of that opinion;
- and a summary of the support the individual or organisation provided following the determination.
- Evidence of the alleged abuser’s abuse against previous partners or family members will also be accepted evidence of an applicant’s legal aid eligibility.
- The Legal Aid Agency can withdraw funding in the event that evidence of domestic violence is proven to be false.
- Find out if a person is eligible for legal aid at https://www.gov.uk/check-legal-aid.
- Find out more about legal aid here.