In February 2016 Rights of Women successfully challenged the use of the Legal Aid, Sentencing and Punishment of Offenders Act regulations 2014 to introduce restrictive criteria for legal aid eligibility for victims of domestic violence. Under the old criteria, a person would only qualify for legal aid for a private family law matter if they had evidence of domestic violence or a risk of child abuse dated within the last 24 months. Examples of evidence included a formal police caution or conviction for a relevant offence, a protective injunction, or a letter from a relevant professional confirming domestic violence or abuse, as long as they were dated in the last 24 months.
The Court of Appeal held that the 24-month time limit had no rational connection with the statutory purpose of making legal aid available to the great majority of persons in the most deserving categories. It held that regulation 33 (which sets out the evidence needed) is invalid insofar as it:
Requires verifications of domestic violence to be given within a 24-month period before any application for legal aid; and
Does not cater for victims of domestic violence who have suffered from financial abuse.
In response, in April 2016 new regulations were introduced that extended the 24-month time limit to 60 months. It also introduced new forms of evidence for financial abuse and amended the law to accept Female Genital Mutilation Protection Orders and Violent Offender Orders as evidence of both domestic violence and a risk of child abuse. This has widely been recognised as an important step forward in securing legal aid for the most vulnerable.
New regulations
However, on close reading of the new regulations and the accompanying government guidance released in May 2016 it appears that evidence of a risk of child abuse, contained in regulation 34, will only be accepted if dated within the last 24 months. In other words, the 2016 regulations only amended the evidence requirements for victims of domestic violence and not those for children at risk of abuse. There has been some confusion about this; the legal aid government app itself suggests that legal aid is available for private disputes over children if you or your children have suffered domestic abuse in the last five years, although this is not reflected in the regulations or guidance.
We now have a situation where the evidence criteria for victims of domestic violence are more favourable than those for children at risk of abuse without any justification for the difference in treatment between the two vulnerable groups.
In the 2011 proposals for legal aid reform, the government initially only intended legal aid to be available for victims of domestic violence, but following the consultation in 2012 it agreed to make legal aid routinely available in private family law cases where there is objective evidence that a child is at risk of abuse.
The government agreed "that child protection is an issue of paramount importance, and that it would be difficult for the protective party to act in person, in cases of potential complexity and heightened risk, and potentially facing the abuser".
Court of Appeal challenge
In the Court of Appeal challenge it was accepted that the legislative intention for keeping legal aid available for victims of domestic violence was to protect those who may be unable to assert their rights and may face intimidation in court because of risk of harm. The Impact Assessment on the legislation in 2012 acknowledged that it can be traumatic for vulnerable individuals to face the perpetrator in court and so they need extra help asserting these rights, but objective evidence of the risk of domestic violence would be needed to make sure the right people got the support.
The statutory purpose of retaining legal aid for victims of domestic violence is strikingly similar to that for retaining it for children at risk of abuse; it is to overcome the difficulty of facing the perpetrator in court and to protect against the ongoing risk of harm. Furthermore, it was recognised in the consultation response in 2012 that for children at risk of abuse the importance of the issues at stake and the evidential complexity of child abuse makes it difficult for litigants to represent themselves in these cases. The accepted forms of evidence for both groups are almost identical.
The challenge by Rights of Women was narrowly argued based on the evidence they had about the impact of the restrictive rules on victims of domestic violence. However, given the reasoning of the Court of Appeal that the 24-month time limit had no rational connection with the statutory purpose of making legal aid available to the great majority of persons in the most deserving categories, it is difficult to see how the 24-month time limit can be justified for children at risk of abuse.
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Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com
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