It would be understandable to assume that acceptedforms of evidence outlined in Regulation 33 of the Civil Legal Aid (Procedure)Regulations 2012, were included to ensurethat only genuine claims of domestic violence made their way to court, but theview that cutswere driven by austerity measures rather than access to justice for some of the most vulnerable people in society persists. Thisconflict between available resources and the right to representation came to ahead in 2014 when Rights of Women and The Public Law Project challenged thelegality of Regulation 33. They won that challenge in February 2016 when the Courtof Appeal ruled that Regulation 33 was restricting access to justice, a right in itself which the Court felt needed to be protected.
Forced to accept that the current provisions foraccessing legal aid were unlawful, the government then issued an update, aheadof announcing its intention to review Regulation 33 and bring into line withthe law. Pending amended regulations, victims of domestic violence can now makean application for a legal aid certificate and include documentaryevidence older than 24 months, removing theoriginal two year limit.
A significant difficulty surrounding evidence incases of domestic violence still remains. In a survey conducted last year byWomen’s Aid which included 1,000 survivors of domestic violence, 80%experienced emotional and psychological abuse, and over 50% experiencedfinancial abuse. Evidence of this kind of behaviour is notoriously difficult togather, and the current documentary requirements for accessing legal aid insuch cases is not wholly sensitive to these invisible forms of assault. Asolution offered to counter these loopholes includes adding a catch-all clause,which would allow representationsto be made where it is evident that someone issuffering from domestic abuse but it cannot be shown through the existing gateway requirements, or prescribed documents. This would allow victims who are suffering genuine abuse to request that legal aid be granted to them despite not being able to prove it through accepted forms of evidence, with discretion on whether to allow access to legal aid resting with the Legal Aid Agency.
Quite how a catch-all clause might work is not yet known, but it is likely that those who have been falsely accused of domestic violence might find the idea both flawed and unworkable, unless high quality forms of alternative evidence can be offered, or detection during early stages of domestic violence improves within professional healthcare, and other sectors. Proposed amendments to Regulation 33 when they come, will also provide food for thought and, hopefully, a better way to protect victims and ensure they have access to support. The law though, can only play a small part in reducing incidents of domestic violence as it asks for proof of harm before providing its protections. Raising awareness within schools, homes and multi-agency settings must also be a feature of the fight to stop domestic violence and empower victims to come forward and be heard.
You can follow Natasha on Twitter: @Sobukira.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.