Regulation that plagued family lawyers declared ‘invalid’ by Court of Appeal

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By Katie King on

Chris Grayling’s changes to rules on domestic abuse sufferers getting legal aid don’t stand up to scrutiny


The Court of Appeal has this morning ruled that the government’s legal aid overhaul — which tore apart the rules regulating domestic abuse sufferers’ right to public funding — is legally flawed, at long last.

Sitting in the Royal Courts of Justice, the judges said that the secondary legislation in question was “legally flawed” and “invalid”, after hearing how women and men across the country were being barred from accessing justice because of the law’s stringent legal aid criteria.

Chris Grayling’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 (termed LASPO) is the primary law in question. This much-hated statute has shaken up the family law legal aid system beyond recognition — and some of the worst affected are also the most vulnerable.

The 2012 reforms have stripped away the availability of legal aid in family law disputes, but the law does explicitly state that victims of domestic violence will not be frozen out. Even so, the eligibility criteria has been tightened.

For a victim of domestic violence to obtain public funding for private law proceedings (divorces, child custody issues, non-molestation orders, etc), he or she must provide “gateway evidence” — as well as being means and merits tested of course.

This gateway evidence is basically a document proving to the Legal Aid Agency that the applicant is a victim of domestic violence. It’s regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended) that tells lawyers what documents will get their would-be clients through the gateway, and it’s this law that was judicially reviewed last month.

The problem with the regulation is that the experience of domestic violence sufferers cannot be captured in a piece of paper. In a survey of women that claim to be victims, 37% did not have the requisite documentation to prove this, meaning that they could not get public funding.

With nearly half of applicants unable to provide this vital gateway evidence, there’s a real risk that they will experience more harm — or even death — because they cannot get legal proceedings off the ground.

This state of affairs is sad, but it’s not surprising. Readers will take one look at the regulation — which has a multitude of clauses and sub-clauses — in its big, long list format, and assume it is expansive and far-reaching.

It’s not.

Victims can suffer at the hands of their partners for years without ever being referred to any sort of support service. And even if the wannabe litigant does have documentary evidence to hand, there are all sorts of hoops that this evidence must jump through before the Legal Aid Agency will accept it.

For certain document types anyway, the evidence must be very specific — so much so that it must refer to a specific incident of domestic violence. When I worked in family law practice, I saw numerous letters from GPs and other healthcare professionals that just didn’t meet the mark because they only acknowledged that the patient had shared that the abuse was happening, rather than list particular violent episodes. It drives the doctors mad too — they know their patient is suffering from domestic violence, but they can’t magic up a conversation that never happened.

Though the criminal law is shifting away from equating domestic abuse with violence, the regulations make no provision for non-violent abuse, such as financial abuse. And another issue is the 24-month time limit. The evidence provided by the applicant must be no more than two years old, and if it is then it doesn’t count. This doesn’t mean the abuse has stopped, it just means that the evidence has expired.

Today’s ruling came about after campaign group Rights Of Women sought to right the wrongs of Grayling’s civil legal aid legacy and had regulation 33 judicially reviewed in the High Court — but they lost. The court held that it was not ultra vires, and it did not run counter to the spirit and purpose of the legislation, and so it was perfectly lawful.

But, not going down without a fight, the group appealed their case to the Court of Appeal, where it was heard at the end of January.

At the time Rights Of Women’s director, Emma Scott, said:

The Government acknowledges that domestic violence is ‘often hidden away behind closed doors, with the victims suffering in silence’.More than three years on from the devastating cuts to legal aid, and despite amendments to the rules, we know that those victims behind those doors do not have the required pieces of paper to prove they have experienced domestic violence.

The appeal prompted sympathetic media attention, and — after an admirable fight from Landmark Chambers’ Nathalie Lieven QC and Zoe Leventhal — Rights of Women proudly announced this morning that they won the appeal.

The Court of Appeal declared that the two year time limit for evidence is unlawful, and the government must amend the regulations to ensure that women suffering from financial abuse are not shut out.

Lord Justice Longmore said:

I would conclude that… regulation 33 does frustrate the purposes of LASPO in so far as it imposes a requirement that the verification of the domestic violence has to be dates within a period of 24 months before the application for legal aid and, indeed, insofar as it makes no provision for victims of financial abuse.

This is undeniably a great result for family lawyers across the country, and I couldn’t agree more with Rights of Women Director Emma Scott when she said:

For nearly three years we know that the strict evidence requirements for legal aid have cut too many women off from the very family law remedies that could keep them and their children safe. Today’s important judgment means that more women affected by violence will have access to advice and representation in the family courts.

It can only be hoped that today’s judgment will act as a clear, red signal to the government, and will prompt a departure away from rigid requirements towards a legal system that respects and protects access to justice for all that need it.

You can read the full judgment here.