Family Law

Limitations on grant of domestic violence legal aid: intra vires the Act

The

Thoughts on the decision

(1) Complexity of legal aid legislation

The first point which is striking about this case is that there is no judicial reflection on the extent to which the complexity of the domestic violence legal aid scheme makes it unlawful. By definition it applies to people who need to know – and to understand – whether they can obtain access to legal representation. They must know if they are excluded from help. It applies to people who, through circumstance (recent domestic violence) or educational background (most people who are not administrative law lawyers) are not likely easily to understand legal aid statutory provisions. Does the complexity which the case surely exposes, make it unlawful?

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal has recently reminded the Legal Aid Agency (in particular) that procedure must make courts ‘effectively accessible’:

'[66] … InAirey v Ireland [(1979) 2 EHHR 533],having decided that there was a breach of Art 6(1), the ECtHR went on to hold that the applicant was denied an "effectively accessible" legal procedure to enable her to petition for a judicial separation and that this also constituted a breach of Art 8.'

Does the relative complexity of the statutory provisions truly make courts accessible, for domestic violence victims, within Airey terms; or is a breach of Art 8 implied here (breaches of Human Rights Act 1998, but not European Convention 1950, were refused permission by the court (para [5])?

(2) Could family lawyers have added anything?

Did it make any difference that this case – essentially about justice within the family law system – was argued out in the