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Home > Articles > 2015 archive

Save Legal Aid, Save Lives

Ruth Tweedale, a law lecturer at the University of Roehampton and former solicitor at Rights of Women, describes recent developments in the campaign to preserve family law legal aid for victims of domestic violence.

Ruth Tweedale, Law Lecturer, Roehampton University















Ruth Tweedale, Law Lecturer at Roehampton University

Equality before the law and access to justice are fundamental pillars of our democracy. Legal aid was introduced over 65 years ago by the post war welfare reforms to facilitate access to justice for all.

Over the years Governments of both colours have chipped away at the legal aid budget by reducing the financial eligibility criteria and creating 'advice deserts' in rural areas1, resulting in many people being unable to access affordable legal help.  The Coalition's Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act) came into force on April 2013 and with limited exceptions2 slashed the legal aid budget – removing legal aid for family law, clinical negligence, welfare, employment, immigration, housing, debt and education. Dressed up as 'reforms' by the Government, the Act has been described by commentators as a 'bloodbath' for legal aid and justice.3 

The Government has been outspoken on its commitment to protect family law legal aid for victims of domestic violence seeking to flee abusive relationships, with the Ministry of Justice stating that all victims are entitled to legal aid to help them "break free from abusive relationships"4. In reality this is not happening, and recent research from Rights of Women and the Citizens Advice Bureau (CAB) confirms this. The CAB Report – Victims of Domestic Abuse: Struggling for Support? – says the regulations, "both in terms of evidence requirements and income or asset thresholds requiring financial contribution, leave large numbers of victims giving up on their rights to justice."5

The Justice Committee of the House of Commons echoed these concerns in its recent Report (the Report) on legal aid published on 12 March 2015. Citing the above research and evidence from wider stakeholders, it concluded: "Any failure to ensure that victims of domestic violence can access legal aid means the Government is not achieving its declared objectives." Whilst the Report welcomed the Ministry of Justice's commitment to keeping the types of evidence required to qualify for the domestic violence gateway under review it also made robust recommendations. They included a 'catch-all' clause which would allow the Legal Aid Agency (LAA) discretion in granting legal aid to a victim of domestic violence who does not fit within the current criteria; and an amendment of the regulations giving discretion to the LAA to accept evidence more than 24 months old, if it assessed that the individual would be 'materially disadvantaged' by having to face the perpetrator in court without legal aid.6

Leaving an abusive relationship is not a simple choice. Safety is a primary and ongoing concern as domestic violence does not automatically cease at the point of separation. Research shows that women are at highest risk of domestic homicide at the point of exiting an abusive relationship7. Access to family law legal aid assists women and children to exit violent relationships safely and rebuild their lives by making it possible to secure protective injunctions, set up safe arrangements and secure court orders for children, and help women to access their legal rights to adequate and fair financial and housing provision on marital breakdown.

Without such protections, the impact of domestic violence can be devastating. Domestic violence is identified as a major factor leading to death in or related to pregnancy and child birth8; female victims of domestic violence are at a high risk of death or murder: with statistics showing that at least two women a week in the UK are killed by their current or former partner9, and a further 500 recent victims of domestic violence kill themselves each year.10

Rights of Women is a legal charity which seeks to empower women, particularly those who have experienced violence, by helping them to access their rights through the law. The charity's work includes providing free legal advice as well as lobbying and campaigning to bring about wider change for all women on issues such as domestic violence and access to justice. Working as a solicitor there, I was, every day, advising women who were experiencing violence at the hands of their partner. Further to the Act coming into force in April 2013, it became apparent that all too many victims of domestic violence were unable to access legal aid and that the Government's promise to ring-fence legal aid for victims of domestic violence was not being fulfilled. Consequently, from 2013 Rights of Women have set about monitoring the impact of the legal aid changes.

The regulations in the Act itself require victims to provide specific forms of evidence of the abuse they have suffered, which must have been acquired within the last two years, in order to be eligible for legal aid. The evidence requirements are restrictive and are limited largely to statutory responses to domestic violence: for example, evidence of a criminal conviction for a domestic violence offence such as common assault.11

At Rights of Women, many of the women I advised had not spoken to statutory agencies, such as the police or social services about the abuse they suffered, and statistics reflect that domestic violence is vastly underreported  – with women experiencing an average of 35 incidents of abuse before contacting the police.12

Despite the Government's "commitment", the regulations in the Act are such that even if a victim of domestic violence has contacted the police 100 times, or has sought support from Women's Aid or another specialist domestic violence service for an extended period, or if she has a protective injunction, e.g. a non-molestation order that expired 25 months ago, these will not suffice as appropriate evidence to access legal aid to resolve her family law situation under the Act. This is the case even if she has all of these.  

Rights of Women surveyed over 180 women who had experienced domestic violence – 38% did not have one of the prescribed forms of evidence under the Act. As a result of not being able to access legal aid 58% of women who had experienced domestic violence, and would have previously been able to access legal aid prior to the Act, took no further legal action.13 

The result of the restrictive regulations is that women unable to access legal aid are being faced with the difficult choice of either representing themselves in complex court proceedings or taking no legal action. Unfortunately, faced with this daunting prospect, women are choosing to stay in abusive relationships, are agreeing to unsafe contact arrangements for children and are slipping into poverty as a result of not being able to take legal proceedings to secure adequate financial provision further to matrimonial breakdown.

This quote from a victim of domestic violence illustrates the danger women and children are being put in as a result of not being able to access legal aid:

"We couldn't get legal aid so the final straw was yesterday that my ex partner turned up unannounced and was abusive and aggressive to me in front of my child then refused to move, this resulted in the police turning up and telling them to move. Its the emotional well being of my children and how it impacts on them that I have concerns, he can try and do what he wants to me but the children shouldn't have to see this. My 5 and 7 year old have been through enough."14

Following lobbying from campaign groups such as Rights of Women, the Government incorporated the Home Office's accepted definition of domestic violence into the Act:

"Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: Psychological; physical; sexual; financial; emotional."

The Government has continually echoed its commitment to providing legal aid for victims of domestic violence. As explained above, the overly strict evidence criteria are acting as a barrier for many victims in accessing legal aid, with almost 40% of women lacking the prescribed evidence15 (not to mention those who are not financially eligible)16.

Rights of Women mounted a legal challenge supported by the Law Society on the restrictive evidence criteria for domestic violence to access legal aid17. The basis of the judicial review was that the regulations were unlawfully restrictive and did not comply with the Government's accepted definition of domestic violence which includes financial and emotional abuse and does not exclude violence which occurred over 24 months ago. In essence, the regulations did not reflect Parliament's intention, when the definition of domestic violence was incorporated in the Act, and consequently many victims of domestic violence have been unable to access family law legal aid.

In a deeply disappointing judgment on 22nd January 2015, the Divisional Court dismissed Rights of Women's claim, finding that the Secretary of State for Justice acted within his powers in making the regulations.18

Emma Scott, Director of Rights of Women, said of the judgment:

"On behalf of the women who continue to be denied access to justice by the legal aid regulations we are devastated by the outcome of our legal challenge. This decision means that women who remain at risk of violence will continue to be denied access to vital legal advice and representation in family cases."

Justice can only be served if the most vulnerable in society can access free or affordable legal advice and representation.  Rights of Women hope to appeal this decision and, I, along with the Law Society and other organisations, remain committed to campaigning to ensure that women and children can access lifesaving legal advice in order to exit violent relationships.  Legal aid is vital to ensure access to justice and I would urge anyone reading this article to come and join us in the fight to help salvage what is left.

Anyone who has been affected by domestic violence can seek help from the National Domestic Violence Helpline on 0808 2000 247.

For more information on the campaign to save legal aid see:
www.lawsociety.org.uk/practice-areas/legal-aid/
www.rightsofwomen.org.uk
www.theguardian.com/law/legal-aid
www.publiclawproject.org.uk/

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Footnotes:

1
"Advice deserts" are where there are no legal aid solicitors providing advice in a category(s) of law in a particular geographical areas. 
2 Legal aid is no longer available for family law, clinical negligence, welfare, employment, immigration, housing, debt and education, with limited exceptions. Legal aid changes: key information and advice - The Law Society.
Forced marriage - Detailed guidance - GOV.UK.  
4 Baksi, C., Rayner, J., Cross, M. and Hyde, J. (2014). Bid to save legal aid for domestic violence victims. [online] Law Society Gazette. 
5 See the Summary of the CAB Report.
6 See page 4 of the Justice Committee Report.
7 Women's Aid Federation England and Wales, (2013). Statistics about domestic violence. See p. 8.  
8 Ibid p. 7.
9 Coleman and Osborne, 2010; Povey, ed. 2004, 2005: Home Office, 1999; Department of Health, 2005. 
10 National Statistics, (2004). The Cost of Domestic Violence. Women and Equality Unit, p.56.
11 For full details on accessing legal aid for family law and the evidence requirements see: Rights of Women, (2015). Family law legal aid - Rights of Women
12 Cps.gov.uk, (2015). Domestic Violence: the facts, the issues, the future - Speech by the Director of Public Prosecutions, Keir Starmer QC
13 See Rights of Women, (2014). Evidencing Domestic Violence: Reviewing the amended regulations.  
14 Ibid.
15 Ibid.
16 For private law family legal aid, such as for divorce or child arrangements, applicants must meet the income and capital threshold criteria, many women who are entitled to legal aid have to pay a contribution to their legal costs which they cannot afford.
17 R (Rights of Women) v Lord Chancellor [2014] EWHC 35 (Admin).
18  Rights of Women, (2015). Court deals blow to rights of domestic violence survivors to access justice - Rights of Women.

24/3/15