Harsh evidence tests leave 40 per cent of domestic violence victims at risk

Rights of Women , 28 JAN 2016

This month the Court of Appeal will decide whether to overturn a High Court ruling on the lawfulness of government changes to legal aid for domestic violence victims.

The hearing on 28 January comes a year after the High Court rejected a legal challenge from domestic violence charity Rights of Women over the lawfulness of new rules that require victims of domestic violence to provide a prescribed form of evidence in order to apply for family law legal aid.

The Court of Appeal hearing coincides with the release of new data from Rights of Women, which shows that 40 per cent of victims still do not have the required forms of evidence to access legal aid. This is despite amendments to the regulations in April 2014.

Law Society president Jonathan Smithers expressed concern that some of the forms of evidence that are required are subject to a 24-month time limit even though perpetrators may remain a life-long threat to their victims:

‘Legal aid is a lifeline for victims of abuse. This new data shows that access to safety and justice is still being denied to the very people the government expressly sought to protect with its amendments to the regulations.

‘The harsh tests requiring people to bring evidence to satisfy the broader statutory meaning of domestic violence are not what parliament intended. Legal aid is often the only way that those who suffer at the hands of abusers can bring their case before the courts. Without legal aid, women are unable to access family law remedies, which are vital in order to help them escape from violent relationships and protect their children. They are being forced to face their perpetrators in court without legal representation.’

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Emma Scott, Director of Rights of Women, said:

‘The government acknowledges that domestic violence is ‘often hidden away behind closed doors, with the victim suffering in silence.’ More than three years on from the devastating cuts to legal aid and despite amendments to the rules, we know that those victims behind those doors do not have the required pieces of paper to prove they have experienced domestic violence.

Our research has consistently shown that nearly half of women affected by domestic violence do not have the required forms of evidence to apply for family law legal aid and that more than half of those women tell us that they take no legal action as a result. This leaves them at risk of further violence and even death. We continue this legal action on behalf of those women in order to hold the government to account on their promise to make family law legal aid available to victims of domestic violence.’

The new rules on evidence criteria, introduced by the government as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, are preventing victims of domestic abuse from getting legal aid for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence.

For the past three years, since the introduction of the domestic violence evidence criteria, Rights of Women has been monitoring the impact of the legal aid regulations on the ability of women affected by violence to access family law legal aid. Their latest survey findings show that women affected by violence, who do not have the required forms of evidence, are faced with a stark choice: pay a solicitor privately, often causing them to get into debt; represent themselves and face their perpetrator in court; or do nothing and continue to be at risk of violence.

As a result, nearly half of the people the government expressly sought to protect from the removal of family law legal aid remain unprotected. The statistics are stark: 1.2 million women experience domestic violence every year.

More than 50 per cent of women responding to the Rights of Women survey said that they took no legal action, as a direct result of not being eligible for legal aid. The rules deny access to safety and justice to the very women the government sought to protect from the removal of family law from the scope of legal aid.

A copy of the full report is available here.