The Ministry of Justice is undertaking national research as to the fitness for purpose of the legal aid domestic violence (DV) evidence requirements. The Ministry of Justice (MoJ) research follows the earlier successful challenge by Rights of Women (R (Rights of Women) v Secretary of State for Justice [2016] EWCA CIV91) – for background on LegalVoice see here.

As part of the consultation, the ministry held two focus groups for solicitors (attended by approximately 20 major providers), and frontline DV services. It created a working group to prepare a questionnaire which has been widely circulated to take views of those most in the know, and has been endorsed by the Law Society, Resolution and Rights of Women, in a joint statement asking for engagement.

From the outset, stakeholders have been clear about the following points:

• Existing gateway evidence was not fit for the MoJ’s expressed purpose of targeting legal aid to victims of DV, and did not ask the ‘right experts’ to passport for legal aid.
• No expiry time limit on evidence is appropriate due to the nature of DV.
• Due to the very nature of financial abuse, the victim is unlikely to be able to evidence it by production of bank statements or other financial documents.
• DV workers and specialist solicitors are DV experts, and should be trusted to passport clients for legal aid.

Regrettably, the solicitor’s attested statement was rejected by the MoJ from the list of interim acceptable proof, and designated as only ‘possible proof if no other forms are available’ – so the solicitor is again ‘at risk’. In spite of representations made, the interim regulations inexplicably focus on bank statements and other financial documents for proof of financial abuse. Lastly, for fear of ‘opening the floodgates’ to those victims previously ineligible, the MoJ is determinedly sticking with a time limit, albeit extended to 60 months.

The deadline for the questionnaire, which can be found here, is this Friday (1 July), and I would urge all practitioners to take part if they possibly can. We need a strong response, otherwise there is a danger that the MoJ may conclude that the majority are happy with the existing regulations. It is essential that this opportunity is not wasted, and your views are vital.

As readers of Legal Voice will know, concerns about the evidence criteria are nothing new.

As long ago as July 2013 the commission of the UN Convention on the Elimination of All Forms of Violence Against Women (CEDAW) had made a determination against the UK government highlighting (paragraph 68 of concluding determination) its concern about schedule 1 of LASPO, which excludes all forms of private family law from legal aid. The commission also raised concerns about the proposed residence test, the introduction of court fees for Employment Appeal Tribunals and the potential for BME women in particular to have to fall back on community arbitration systems, including faith-based tribunals as a result of justice being inaccessible.

On the 22 April 2014, the legal aid regulations were amended to expand the evidence criteria for applying for family law legal aid, introducing new forms of evidence, including evidence of a perpetrator on bail, non-admission to a refuge (due to insufficient refuge spaces available), and a referral to domestic violence organisations by a health professional.

Existing forms of evidence were widened to increase their practical application. Rights of Women and Women’s Aid have been engaging in regular research about the ease with which victims can obtain prescribed evidence in order to obtain legal aid, so highlighting the very real difficulty for victims to access representation. The most recent report in 2015 records that the April 2014 amendments have made very little difference to the numbers who succeeded. A further report was submitted to CEDAW on 22 June 2016, in which national DV charities raise ongoing concerns about access to justice.

The CEDAW’s determination also recommends regular reviews as to the availability of legal aid for victims. The government had failed to do this until the Court of Appeal judgment in the Rights of Women case when the appeal judges found in favour of the appellants. This judgment concerned two aspects of the domestic violence evidence regulations: the 24-month time limit, after which evidence expires (which would seemingly happen mid-case); and the fact that the types of acceptable evidence were irrelevant to the issue of financial abuse. The Court of Appeal further noted that they were disturbed by the inability of the Legal Aid Agency to accept any evidence that was outwith the prescribed forms.

In the leading judgment given by Lord Justice Longmore, the court concluded that the 24-month time limit on evidence was arbitrary, and that there are many occasions when the ongoing risk of violence exceeds 24 months, and that there was no justifiable reason for this cut-off point. Further, it was accepted that there must be an extension of the gateway evidence to include proof of financial abuse (paragraph 43 (i to vii)).

The current consultation process is a vital opportunity for practitioners to ensure that domestic violence victims in future are better protected.
Cris McCurley is a partner at Ben Hoare Bell and wrote the CEDAW Shadow report here.