Commons Library analysis: Legal aid for victims of domestic abuse

This Commons Library briefing describes the availability of legal aid for private law children and family proceedings in England and Wales, as it may relate to people who have suffered domestic abuse.

It examines:

• Current eligibility criteria for civil legal aid
• The provision until April 2013 for legal aid for victims of domestic abuse, both for protection orders for domestic violence (and forced marriage) and more widely in private law children and family proceedings
• The changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act 2012) from 1 April 2013, with the removal of most private law children and family proceedings from the scope of legal aid and the introduction of the domestic violence “gateway”
• Commentary on how the gateway has operated in practice and whether victims of domestic abuse are receiving legal aid and
• The judgement of the Court of Appeal in February 2016, when it was held that the regulation requiring supporting documents in domestic abuse cases to be no more than 24 months old (at the time of applying for legal aid) was in principle invalid.

How did Legal Aid, Sentencing and Punishment of Offenders Act 2012 change civil legal aid?

The LASPO Act 2012 made wide-ranging changes to the scope and availability of civil legal aid in England and Wales.  Its legal aid provisions came into force on 1 April 2013. Much of the detail of the current scheme is in regulations (secondary legislation). 

The Act took most private law children and family proceedings out of scope for legal aid, but made provision for legal aid to continue to be available where there is evidence of domestic abuse. This is often called the domestic violence gateway.  The range of evidence of domestic abuse to be accepted ─ although much discussed during the Bill’s passage ─ did not form part of the Act but has since been published in regulations.  These regulations have subsequently been amended in the light of a Ministry of Justice (MoJ) review. 

The Court of Appeal held in February 2016 that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 – which deals with supporting documents in domestic abuse cases – was in principle invalid on two grounds, insofar that it required verifications of domestic violence to be given within a 24 month period before any application for legal aid and did not cater for victims of domestic violence who had suffered from financial abuse.

How has the domestic violence gateway been working?

Whether the gateway is enabling people who have experienced domestic abuse to access legal aid – or whether, conversely, vulnerable people are being left without such access – continues to be disputed.

Critics of the changes continue to argue that the gateway is too narrow, preventing victims of domestic abuse from obtaining the help that they need. The MoJ, though, argues that it has made it easier for victims of domestic violence to obtain legal aid, by adding to the range of evidence that will be accepted, and that this has contributed to a 19% rise in the number of grants awarded.

The Joint Committee on Human Rights, in its report in February 2015 on violence against women and girls, reiterated its concerns about the potential impact of the evidence requirement on victims of domestic abuse who could not provide evidence of the specified types.

In its report in March 2015 on the impact of the LASPO Act 2012’s changes to civil legal aid, the Justice Committee noted that Rights of Women had said that (despite additions to the list of acceptable evidence) 39 per cent of women still had none of the acceptable forms of evidence. The Committee expressed concern that some victims of domestic abuse could not provide the requisite evidence and urged the creation of a “catch all clause”.

Should all victims of domestic violence be able to obtain legal aid?

Recent remarks by justice minister Lord Faulks and an unnamed MoJ spokesperson suggest that there might have been some shift in the Ministry’s stance on whether all victims of domestic violence should be able to obtain legal aid.

The Government maintained throughout the passage of the Bill that became the LASPO Act 2012 that the intention was not to provide legal aid to every victim of domestic violence; the then junior minister, Jonathan Djanogly (for example), said that the intention was not to make legal aid available to all victims of domestic violence, whatever the evidence for that abuse. 

In February 2016, though, after the Court of Appeal ruling, a MoJ spokesperson was quoted as saying that they were determined that victims of domestic violence should be able to get legal aid “whenever they need it”. Lord Faulks said the same in the Lords in March 2016.

Controversy surrounding the LASPO Act 2012’s reforms of legal aid

This controversy is not new. The issue of legal aid for private law children and family cases involving domestic violence attracted controversy from the time that, in response to its public consultation on legal aid reform, the Government published its white paper and as the subsequent Bill (now the LASPO Act 2012) made its way through Parliament.  Controversy continues about the effects of the Act and regulations in restricting access to legal aid, not just for people who have experienced domestic abuse.

Particular concerns and areas of controversy surrounding the LASPO Act 2012’s impact on people seeking help with legal problems and on providers of legal aid, and the rise in the number of self-represented litigants (litigants in person) observed since the Act came into force, are discussed in other Commons Library briefings, available on Parliament’s topic page for legal aid.   Other briefings about domestic violence are available on the topic page for crimes of violence.