Domestic violence ruling: an important step in the right direction
The Court of Appeal has declared the evidence rules for legal aid in cases of domestic violence and abuse invalid. Emma Scott sets out what this judgment means for the women affected and reflects on what remains to be done.
The court accepted our arguments that the fear of, or risk from, a perpetrator does not disappear after two years.
The Court of Appeal’s judgment in R (Rights of Women) v Lord Chancellor and another [2016] EWCA Civ 91, 18 February 2016, has been a long-awaited victory in a tireless (and tiring!) campaign against the devastating cuts to the legal aid scheme. Since 2011, we have been shouting loudly, sometimes literally, about the impact the legal aid cuts were and are having on women’s ability to access their legal rights and remedies in order to escape from, and rebuild their lives after, domestic violence. Women experiencing violence need specialist legal advice and representation to enable them to protect themselves and their children from violence; to divide joint assets and debts following relationship breakdown; to make arrangements for child contact; to organise child maintenance; and to secure their immigration status.
I’m in a legal ‘black hole’. I don’t qualify for legal aid and cannot afford a solicitor. So after years of sexual and emotional abuse I am left to deal with my son’s father (the perpetrator) alone. How can this be right? Where do I go?1Evidencing domestic violence: reviewing the amended regulations, Rights of Women/Women’s Aid/Cymorth i Ferched Cymru (Welsh Women’s Aid), November 2014, p8.
The government acknowledges that domestic violence is ‘often hidden away behind closed doors, with the victim suffering in silence’2www.gov.uk/government/publications/2010-to-2015-government-policy-violence-against-women-and-girls/2010-to-2015-government-policy-violence-against-women-and-girls and has repeatedly promised to protect legal aid for those affected. Yet our research over the past five years has consistently confirmed that those victims behind those doors do not qualify for family law legal aid because they do not have the pieces of paper required by the regulations. Our judicial review was therefore brought on behalf of those women in order to hold the government to account on its promise to make legal aid available to victims of domestic violence.
Our claim specifically challenged the lawfulness of Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 33, made under Legal Aid, Sentencing and Punishment of Offenders Act 2012 s12. We argued that the evidence requirements set out in reg 33 were ultra vires LASPO as they substantially narrowed the statutory definition of domestic violence in the Act.
Lord Justice Longmore’s judgment, handed down on 18 February, is an important recognition of women’s real life experiences of domestic violence; the judgment means more women affected by violence will have access to advice and representation in the family courts:
… I would conclude that … regulation 33 does frustrate the purposes of LASPO insofar as it imposes a requirement that the verification of the domestic violence has to be dated 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 (Longmore LJ, para 47).
The Court of Appeal accepted our arguments that the fear of, or risk from, a perpetrator does not disappear after two years. It also recognised that forms of violence such as financial abuse, contained within the statutory definition, are almost impossible for women to evidence.
The judgment means the list of domestic violence evidence set out in reg 33 will no longer be subject to the 24-month time limit. The Ministry of Justice must also amend the list to ensure family law legal aid is available to those who have experienced financial abuse. We are currently working with the ministry to explore what forms of evidence are realistically available for financial abuse.
As I think about moving on from Rights of Women in the summer, this case and our 40th anniversary last year have given me plenty of opportunities to reflect on our achievements as an organisation. For 40 years, Rights of Women has worked to ensure women have equal access to the law and remedies to protect themselves from violence and discrimination. In my time, we have been proud to work alongside successive governments in the development of new legislation to increase the protections available to women affected by violence: new civil and criminal law remedies for forced marriage and female genital mutilation; new offences to tackle the demand for prostitution and coercive control; and the destitution domestic violence concession for women on spouse visas.
Despite the excitement resulting from the Court of Appeal’s judgment, we know our case deals with only one of the retrogressive steps we have seen recently in women’s access to justice. Other aspects of the legal aid scheme create a crevasse between women and their rights and remedies. Wider changes in government policy in the family justice system are leading to more unsafe outcomes for women and children. These gnaw at the very heart of our vision to achieve equality, justice and safety in the law for all women, and we will not stand by and watch. While women remain cut off from the remedies the law affords them, our campaign continues.
1     Evidencing domestic violence: reviewing the amended regulations, Rights of Women/Women’s Aid/Cymorth i Ferched Cymru (Welsh Women’s Aid), November 2014, p8. »

About the author(s)

Description: Emma Scott
Emma Scott was director of Rights of Women for eight years until June 2016 (http://rightsofwomen.org.uk).