A High Court judgment on 8 March 2023 means the Legal Aid Agency (LAA) must remake a decision refusing legal aid to a domestic abuse survivor seeking to enforce a 50:50 child custody arrangement that had been breached by her ex-partner when he took the child to live with him against her wishes.

The court ruled that means-testing rules passed by parliament allowed a dependant to be treated as part of more than one household, and that the Ministry of Justice (MoJ) guidance to the contrary was unlawful in this respect. It was this guidance that the LAA had applied in its decision that the claimant, Susie,1Not her real name. was ineligible for funding, as, without counting her son as a member of her household, her disposable income was assessed as being above the threshold for qualifying for legal aid.

The court also ruled that the LAA should have taken into consideration the fact that Susie needed legal aid to enforce a previous agreement (by which her son had lived with her more often) when it refused her legal aid application. An argument that the refusal breached her rights under articles 6 and/or 8 of the European Convention on Human Rights failed.

The LAA will now have to remake its decision and the MoJ will have to update its guidance. The judgment also means it is now more likely that parents sharing caring arrangements for their children will qualify for legal aid in all areas of civil law.

Susie said: ‘I am so delighted at the outcome of my case. I thought that if I left my abusive partner I would be able to enjoy time with my son in a peaceful environment. Instead, my ex-partner managed to coercively control my child into staying with him, so the abuse and control has continued.

I was sure that I would get legal aid to contest what was happening as I had an extremely low income as well. I was absolutely distraught to find I couldn’t because my child was classed as not a dependant, or part of my household.’

Public Law Project’s Daniel Rourke, who was Susie’s solicitor in the case,2Counsel: Chris Buttler KC and Emma Foubister of Matrix Chambers. said: ‘Legal aid is an essential pillar of our justice system and should be accessible to those who need it most. The impact of this judgment is not limited to family law and should lead to other people who share care of a dependant being able to access legal aid more easily.’