Domestic violence Legal Aid rules are unlawful

An important victory for victims of domestic abuse was won last week, when the Court of Appeal ruled that the current requirement that victims of domestic violence have to provide evidence of the abuse they have suffered in order to get Legal Aid, and that this evidence must be no more than two years old, is unlawful. Currently, a victim of domestic violence who wishes to secure Legal Aid for most private law matters, such as divorce from their abusive partner, has to provide very specific forms of evidence showing that they have suffered this abuse, and this evidence has to be dated within the preceding two years. The evidence requirements are onerous and solicitors cannot accept any other documents than those listed in the relevant legislation; in fact, guidance provided by the Legal Aid Agency currently states: ‘Because the forms of evidence are prescribed by regulation there is no discretion… to accept other forms of evidence’.

[1] Accepted evidence includes documents such as written confirmation from a healthcare professional within the last two years that the victim has suffered injuries consistent with domestic violence, or proof of a perpetrator’s relevant, unspent conviction for a domestic violence offence. This has meant that since the introduction of these new rules in April 2013, many genuine victims of domestic violence have arguably missed out on the help with legal fees they so desperately need. In R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91, the Court of Appeal found that the requirement that victims have to provide evidence which is no more than two years old in order to be eligible for Legal Aid, is unlawful because regulations made under statute should not undermine the purpose of the statute. It was found that the regulation also failed to take into account ‘financial abuse’ as well as physical abuse. This is an important decision as it means that in theory, Legal Aid will be made available to many more victims of domestic violence, enabling them to seek the legal advice and assistance they need to rebuild their lives. The Legal Aid Agency will need to consider re-drafting this requirement, or appeal this decision. The full judgment can be found here.

If you wish to discuss a possible legal aid application for a domestic violence case please contact Mavis on 0208 885 7986 who can provide further information, or arrange a mutually convenient consultation.

[1] ‘The Legal Aid Sentencing and Punishment of Offenders Act 2012: Evidence Requirements for private family law matters’, April 2013