The challenge arose in the context of the restrictions on the availability legal aid for family cases introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Legal aid is no longer available in most private law family cases. However, a specific exception was made for people who had experienced domestic violence. In order to qualify for legal aid, as well as satisfying the Legal Aid Agency of financial eligibility and merits of the case, the applicant must also provide evidence of domestic violence. The documentation required was prescribed by the Regulations accompanying LASPO and included a requirement for evidence of domestic violence in the 24 months preceding the application. There was no provision for any flexibility in the application of this rule.
Rights of Women argued that the ’24 month rule’ excluded a large number of victims of domestic abuse. They were able to cite various examples of situations where this rule had resulted in victims of domestic violence, who had clear evidence of their experiences, being denied legal aid. In its judgment, the court referred to two examples; M and N.
M was the victim of serious physical, sexual and psychological abuse perpetrated by her husband. He applied for contact with their children more than 2 years after the last incident of domestic abuse. Whilst M had clear documentary evidence of domestic violence, it was not sufficient to qualify her for legal aid under the rules. Her application for exceptional legal aid was refused. She was eventually granted legal aid, but only after obtaining a medical report to confirm the recurrence of a psychological illness that occurred as a direct result of her having to face her husband in court when she was unrepresented.
N had been the victim of serious physical and psychological abuse at the hands of her husband. He was convicted in relation to these incidents in 2006. By the time he made an application to the family court for contact with his children, his conviction was spent. Like M, she had to face her husband at court without any representation. She too had been refused legal aid. She too was only granted legal aid after providing medical evidence that the experience of facing her husband in court had caused flashbacks of the abuse she suffered at his hands. Sadly, the cases of M and N are not unique.
The Court of Appeal found that the ‘24 month rule’ was unlawful as it defeated the purpose of the act which was to provide legal aid to survivors of domestic abuse. The decision has been welcomed by the Law Society and Rights of Women who have expressed a willingness to work constructively with the Ministry of Justice to ensure that women who have been subject to domestic violence will in the future have access to legal aid.
Rights of Women is a charity that provides legal advice to women in the areas of family, criminal and immigration law. The success in the Court of Appeal has come about after much hard work and determination on the part of the team at Rights of Women. It will make a real difference to people who have suffered domestic abuse. We were pleased to provide a statement in support of their application and look forwarding to supporting them in the future as they carry on their important work.