There will be changes to Legal aid for victims of domestic abuse from Monday 8.1.18. What do the changes mean?

Since the Legal aid, Sentencing and Punishment of Offenders Act came into force in 2013 there appears to have been confusion as to what circumstances legal aid is available. This is a real concern to me as there are vulnerable people who desperately need access to justice particularly in family law matters. Legal aid was greatly cut by LASPO, but it is still available in certain circumstances. It is important to take legal advice as to Legal aid eligibility.

Legal Aid for private family law cases, such as contact or residence matters (now known as Child Arrangements Orders) is generally only available where the person applying for legal aid can provide evidence that they are a victim of domestic abuse, or where they can show that a child has been or is at risk of abuse. There is prescribed evidence that is required to obtain legal aid. Initially the evidence of domestic abuse had to be within 2 years. This was a real challenge as there would be occasions when for example the perpetrator of the abuse had been in prison for over 2 years then came out and made an application for contact.

Rights of Women successfully challenged the 2 year evidence requirement. The time period was then extended to 5 years.

There have now been further developments. From 8 January 2018, the five year time period for evidence will be removed.

The existing evidence requirements will also be replaced with a new Schedule of Procedure Regulations.

When the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 come into force, acceptable evidence of domestic abuse from the other party (usually an ex-partner) will include:

• Evidence that they have been arrested for a relevant domestic violence offence.
• A relevant police caution for a domestic violence offence.
• Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
• A relevant conviction for a domestic violence offence.
• Evidence of a court order binding over the other side in connection with a domestic violence offence.
• A domestic violence protection notice
• A relevant protective injunction.
• An undertaking given provided that a cross-undertaking relating to domestic violence was not given by the person applying for legal aid.
• A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence.
• An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that the person seeking legal aid was assessed as being, or at risk of being, a victim of domestic violence by the other party.
• A letter or report from an appropriate health professional, for example a GP, nurse, psychologist, health visitor.
• A letter or report from a health professional confirming that there was a referral by an appropriate health professional to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
• A letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum).
• A letter from an independent domestic violence advisor confirming that they are providing support.
• A letter from an independent sexual violence advisor confirming that they are providing support.
• A letter from an officer employed by a local authority or housing association for the purpose of supporting tenants.
• A letter from an organisation providing domestic violence support services setting out the support required and the reasons for the support.
• A letter or report from an organisation providing domestic violence support services in the United Kingdom confirming that the person applying for legal aid was refused admission to a refuge and they sought admission because of allegation of domestic abuse.
• A letter from a public authority confirming that the person applying for legal aid was assessed as being, or at risk of being, a victim of domestic violence (or a copy of that assessment).
• A letter from the Secretary of State for the Home Department confirming that the person applying for legal aid had been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.
• Evidence which the Legal Aid Agency is satisfied demonstrates that the person applying for legal aid has been, or is at risk of being, the victim of domestic violence in the form of abuse which relates to financial matters.

Acceptable evidence in relation to the protection of a child from the other party (usually an ex-partner) will include:

• Evidence that they have been arrested for a child abuse offence.
• A relevant police caution for a child abuse offence.
• Evidence of relevant criminal proceedings for a child abuse offence which have not concluded.
• A relevant conviction for a child abuse offence.
• A relevant protective injunction.
• A copy of a finding of fact made in proceedings in the United Kingdom of abuse of a child by them
• A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that the child was assessed as being, or at risk of being, a victim of child abuse by them (or a copy of that assessment).
• A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that a child protection plan was put in place to protect the child from abuse or a risk of abuse by them (or a copy of that plan).
• An application for an injunction made with an application for a prohibited steps order against them under section 8 of the Children Act 1989 which has not, at the date of the application for legal aid been decided by the court.

The changes will certainly be welcomed by lawyers and those applying for legal aid. It is hoped that legal aid and access to justice will be more accessible to those that need it. However, there will still be challenges. The need for clients to obtain evidence, which will need to comply with particular wording and references (too detailed to deal with here) is still in place. Lawyers will still need to depend on the relevant professionals to provide the evidence without delay. Often the need for advice and representation is urgent.

Are the changes enough? In my view they help but there is need for further reform to ensure that those who need it are able to obtain access to justice. Watch this space …….