The Government has very recently made a decision to remove a time limit for evidence that is required, for people to get legal aid.
To obtain legal aid in private family law cases, e.g. residence and contact disputes, there are two tests. The first is to evidence that a person has been a victim of domestic abuse. The second is that that person is financial eligible, which is determined by a full means assessment.
In April 2013, the Government introduced stringent rules that made it difficult for a number of victims of domestic abuse to get legal aid in private law cases. There were strict requirements as to which documents could be accepted by the Legal Aid Agency, as evidence of domestic abuse. This evidence could only be up to 2 years old, to be accepted. This was met with resistance because a number of victims either had no evidence, or the evidence was older than 2 years old. The Government then extended the time limit for such evidence to 5 years. However, perpetrators of domestic abuse often remain a lifelong threat, and so limiting the evidence to 5 years is unjust. For example, if a father had been abusive in the past and the mother obtained an injunction 6 years ago, then the father disappeared and came back 6 years later demanding to see his children, and was abusive to the mother again, the mother would not be entitled to legal aid. Therefore, if he made an application to the court to see his children again, the mother would have to represent herself and face the father in court, alone.
Du Boulay has stated: ‘The current rules are so restrictive that they fail to assist a large number of victims – the majority of whom are women. Our evidence showed that up to 40% of women could not meet the requirements.”
The Ministry of Justice has now confirmed that the current 5 year time limit will be removed. This will make it easier for many victims of domestic abuse to access legal aid and will make it a much less traumatic experience for them, especially when it comes to court proceedings. The Government has stated that the types of evidence that will be accepted will be “significantly broadened”, which means that obtaining evidence of domestic abuse will be easier.
A Law Society spokesperson said: ‘Legal aid is a lifeline for those who have suffered abuse. It is often the only way someone can bring their case before the courts. ‘Relaxing time and evidence restrictions so more victims of domestic violence can get legal aid for court hearings will be a welcome relief for many people.”
The significance of a victim of domestic obtaining legal aid for court proceedings is of course that they can be represented by a lawyer at court. This will mean that: they will have access to legal advice; documents can be drafted on their behalf; they will be represented at court therefore not have to address the Judge themselves; they will not have to pay for documents to be brought into court proceedings, e.g. Police evidence, and significantly, if matters are fully contested, they will not have to question their perpetrators directly. However, a perpetrator mostly does not get legal aid, so this may mean that a victim is questioned by their perpetrator. Clearly this is an inadequate position, and Judges raised concern about this practice. A recent report has been published which suggests that further training and guidance should be provided to family law Judges, to adopt an approach more similar to that adopted in criminal courts.