In April 2013 there were significant changes to the legal aid funding system. This meant that in all applications after this date, legal aid would not be available to fund family court proceedings unless the person applying for funding was the victim of domestic violence.
This means that around 75% of people who would have previously been eligible to receive legal aid funding for family matters were no longer eligible. Since these changes were introduced, there is a significant increase in cases which one or more of the parties are representing themselves without any legal representation. This can lead to a particularly unfair situation such as a wife who has been a stay at home parent who is not eligible to fund legal representation and does not have access to funds for legal costs could be against her husband who has been able to build on his career over the course of the marriage, has a much higher disposable income and can afford legal representation. This scenario will nearly always place the person without representation at an unfair advantage.
There are no current proposals to revert to the former system which was assessed upon a person’s financial situation and merits of the case only. There are now reported cases where court orders are being overturned by the Court of Appeal as a result of the order being unfair as a lack of access to legal representation was available at the time. If this trend continues, it may be the case that the legal aid system will again have to be reviewed.
Victims of domestic abuse are on the face of it available to still receive funding if they meet the financial requirements. The idea being that a victim of domestic abuse would not have to face the perpetrator of abuse without representation in cases enabling them to escape the violent relationship or proceedings enabling them to protect their children.
Unfortunately, due to the very stringent funding criteria set out under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), the scope of evidence to demonstrate domestic abuse is extremely limited. It was recognised from the outset by family lawyers how detrimental such a limited scope would be for victims of domestic abuse. However, this has only been recognised more recently by those outside of the legal profession following reports in the media. This has recently been highlighted by an ongoing case in the Court of Appeal where charity Rights of Women are challenging the lawfulness of the funding requirements.
One of the key issues is that evidence is generally time limited to the last 24 months. Any evidence dated outside of this period will generally be disregarded. Of further concern is that the evidence requirements are very specific. Prescribed formats would include a Police caution issued within the 24 month period prior to the application for legal aid, a letter from a health professional which must confirm that injuries have been reported within a 24 month time frame which are consistent with that of domestic abuse or a letter from a domestic abuse refuge confirming that the victim has been admitted into the refuge within the last 24 month period.
Whilst on the face of it, the 24 month time limitation may appear reasonable and the evidence requirements satisfactory, when taking into consideration that around 70% of cases of domestic abuse are unreported, this means that there are going to be a high number of victims of domestic abuse that fall outside of legal aid eligibility.
An example of somebody who would not be eligible to receive funding who would otherwise be a victim of domestic abuse and should be entitled to legal aid would be a spouse who has suffered silently for years and had not made a report at the time of separation. If the spouse then wished to commence divorce and financial proceedings a few months following on from the separation, it is highly unlikely that they would have in place any evidence to substantiate the claim of domestic abuse and therefore would either need to fund the proceedings privately or represent themselves.
It would also mean that the victim of significant and protracted domestic abuse who had relocated to a refuge initially then moved on to live independently, would not be eligible to receive legal aid if the perpetrator were to locate them in their new home outside of the 24 month period and commence family proceedings such as financial proceedings or those relating to a child.
One key way in which a victim of domestic abuse could protect themselves and ensure eligibility for legal aid would be to seek advice from a qualified family lawyer who will be able to offer comprehensive legal advice and discuss potential injunctive court applications which would ensure that funding would remain available post separation.
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