Justice ND89566In April 2013, the government introduced radical cuts to legal aid across many areas, including family law.

Although it remained possible for people to apply for legal aid in some cases relating to disputes about children or financial arrangements following divorce, a stringent new test was introduced requiring victims of domestic violence to provide evidence in a prescribed form. Some forms of the evidence were subject to a strict 24 month time limit, even though the threat to victims often continued far beyond that time had expired.

Figures released in December 2014 showed that 40% of victims of domestic violence were unable to produce the required form of evidence and so were unable to access legal aid. Increasing concern amongst domestic violence support organisations and legal professionals led to Rights of Women issuing a challenge to the legality of the requirement to produce the evidence in such prescribed formats.

The case was heard by Lord Justice Fulford and Mrs Justice Lang in the High Court on 22nd January 2015. The Judgment runs to 22 pages and thoroughly explores the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 which specifies the type of evidence required. The judicial review launched by Rights of Women asserted that the government had used the procedural regulations unlawfully to introduce more restrictive criteria for eligibility than those set out in LASPO itself. It was an unwieldy mechanism to use to try and challenge the restrictions to legal aid, but that is often the way with challenges by way of judicial review.

To the disappointment of Rights of Women and the Law Society, which had supported the challenge, the court did not agree that the use of powers under Regulation 33 had gone beyond the intended scope of LASPO. Mrs Justice Lang accepted that there were justifiable criticisms of regulation 33 and acknowledged the concerns of the interested parties, but concluded by saying: “It was a legitimate means of giving effect to the act’s intention to take family law proceedings outside the scope of legal aid, whilst preserving legal aid for the exceptional category of victims of domestic violence in need of protection in family law proceedings….Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the [lord chancellor], and ultimately parliament, to address.”

Fitzhugh Gates Solicitors Comment

So, for now, the prescribed forms of evidence remain as set out in Regulation 33, unless and until any new government after May 2015 seeks to change them.

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