Developments in legal aid for victims of domestic abuse in family law cases
It has been a long journey, and many would say that it is not over yet, but 8th January saw the Ministry of Justice (MOJ) publish the new regulations to improve and extend the criteria for evidence by which victims of domestic abuse can prove that they should be entitled to legal aid in private and family law cases.
As long ago as 2011 the initial consultation on what would become LASPO, but what was known by consumers of legal aid simply as ‘the cuts’ was produced, and its impact was devastating. Vast areas of law which were formally in scope for legal aid were removed, and in the family arena, all of private family law was removed from scope (save for specified convention obligations such as international child abduction) unless the applicant could prove that they were a victim of domestic abuse.
The rationale was that legal aid was a finite resource in Austerity Britain, which must be reserved for the most vulnerable in society. The flaw in that argument was that the evidence threshold to apply for legal aid as a victim of domestic violence was set so high as to make achievement of legal aid an impossibility.
The original test was that the applicant had to prove that she had been a victim of violence from her partner or ex-partner, which had been successfully prosecuted or had been proved at a Fact-Finding Hearing in the Family Court, that had occurred in the last 12 months. The only types of violence which were allowed were physical violence.
A record number of consultation responses were lodged: usually a consultation will attract 100 or so responses from interested groups, but in 2011 LASPO attracted over 9000, many from domestic violence organisations stating the obvious – that the definition of domestic violence in the consultation bore no relation to the reality of the lives of real victims of violence, but also was a stranger to the Governments own much wider definition of domestic violence which included all forms of nonphysical violence.
The final version of LASPO was not much better for victims of abuse, and the proofs demanded were out of reach. In a Motion of Regret in the House of Lords on 31 March 2013, Baroness Scotland spoke out against the cuts especially for victims of domestic abuse saying, “Women will die as a result of these measures”, but despite a vote in favour of amending LASPO in the Lords, the changes to eligibility were pushed through in The Commons.
The Law Society sponsored me to attend the 2013 UK CEDAW enquiry, the UN Convention which examined the UK as a state signatory to the Convention for the Elimination of Discrimination against Women (CEDAW). I gave evidence, as did many front-line Violence Against Women (VAW) workers which resulted in a Determination (similar to a Judgement) against the Government and the Government were given 2 years to make the necessary changes to ensure that all victims of domestic abuse who are financially eligible, will get legal aid.
This Determination was used by Rights of Women (ROW) in their legal challenge to cuts for victims of violence, as was the evidence that they had collected about the numbers of victims who could not obtain the necessary passporting evidence. Their victory over the Government in February 2016 led to the formation of a working party of ROW, The Law Society and Resolution, and the taking of witness evidence by the MOJ Solicitors, Victims of Violence and VAW NGOs.
The process took almost two years. During that time, we had three changes of Lord Chancellor and MOJ ministerial staff, so progress at times felt beyond us. Half way through, CEDAW reported on the Governments own report of progress made by them following the Determination, which produced a further negative Determination which kept the pressure on the Government.
The final changes have come a very long way from where we started in 2011, both in the definition of what constitutes abuse, and in more realistic and accessible forms of evidence, the chief of which being the final acceptance of VAW NGO projects being allowed to certificate an applicant. This had been a demand in every consultation or report on the issue from start. Solicitors are still not accepted as suitable to certificate a victim, not even specially accredited domestic abuse specialists. The final outcome was not exactly what we wanted but was more than we expected to achieve.
The process for the net CEDAW examination has just begun in earnest, and legal aid will, once again, be the top of the agenda.
The link to the new eligibility evidence can be found here.