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A glimmer of hope in legal aid developments?

On 18 February the ever resolute charity, Rights of Women successfully appealed against the decision that their application for a declaration that the Regulations relating to the eligibility for legal aid had been used unlawfully to introduce more restrictive criteria for the requirements found and intended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Rights of Women argued that LASPO set too rigid and narrow requirements for supporting evidence for legal aid applications which excluded many women who ought to be eligible for legal aid. Their argument and application focused specifically on the requirement that supporting evidence (of domestic abuse or risk to child) must be within the preceding 24 months of the application for legal aid. A valid argument; it is ludicrous to suggest that the fact the domestic abuse they suffered was more than 2 years ago means it is any less frightening for them to face their perpetrator in Court.

The appeal was successful – regulation 33 was declared invalid insofar as it restricts evidence of domestic violence to being within a 24 month period and does not cater for victims who have suffered from financial abuse. But, what does this mean in practice?

This was always going to be a landmark judgement, however family law practitioners have been waiting to see how the Ministry of Justice and the Legal Aid Agency would respond and for some indication as to how polices would be adapted and changed to reflect the decision and comments made.

The Ministry of Justice has now announced, in a written statement on 21 April, that there are areas about which they need ‘further information’ before being able to produce ‘replacement regulations’ and that they are working with domestic violence support groups and with legal representative bodies and government colleagues to obtain this information and develop their understanding of the issues involved.

In the meantime they have produced ‘interim regulations’, which came into effect on Monday 25 April. These see the original time limit for evidence increasing to 5 years and the introduction of a provision for assessing evidence concerning financial abuse. This is extremely positive and helpful for practitioners when dealing with and considering applications for legal aid.

In respect of the inclusion of evidence of financial abuse however, this will remain discretionary – “evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters…” This is a difficult area. Financial abuse is often hard to prove and the Ministry of Justice will need to give extremely carefully thought to this before producing their replacement regulations. Rights of Women are working with the Ministry of Justice to consider what may realistically be available and this is positive. In the meantime, the interim regulations and use of the Director’s discretion may mean that practitioners will continue to run the risk of documents not being accepted, delays in applications being considered as well as inconsistency in application of such discretion.

This is certainly a step in the right direction and the Ministry of Justice’s replacement regulations and the Legal Aid Agency’s updated guidance will continue to be awaited with anticipation. However, whatever progress may be seen there will inevitably remain other obstacles and uncertainties and the availability of legal aid will arguably remain far too restrictive and with many ‘gaps’ which prevent all those in need of assistance being able to access it. It is inevitable that there will remain victims who will continue to be discouraged from or too intimidated to make what may be a necessary application to the Court to protect themselves or their children, because of the fear of representing themselves against, having to negotiate with and even be cross-examined by the perpetrator of that violence.