The High Court has recently dismissed an application made by domestic violence charities to change the evidence used for domestic violence victims' applications for Legal Aid.
Since changes in April 2013, Legal Aid is still available for Non Molestation and Occupation Orders and Care Proceedings brought by the Local Authority. However, for other Private Law matters involving arrangements for children and division of financial assets in divorce, there is no Legal Aid available unless the person seeking Legal Aid can prove that they are victim of domestic violence/abuse. To prove this adequately, the evidence needs to fulfil a certain criteria which is what domestic violence charities are challenging
It is this strict criteria of evidence which is creating worrying barriers preventing victims of domestic abuse being able to apply for Legal Aid. Such proof must be one of the following:
a) The perpetrator of the domestic abuse incident has an unspent conviction for domestic violence offence.
b) The perpetrator of the domestic abuse incident has received a police caution for a domestic violence within the last 24 months.
c) There is evidence of criminal proceedings against the perpetrator for a domestic violence offence, which are not yet concluded.
d) There is a protective injunction against the perpetrator of the domestic abuse incident which is either still in force or was granted within the last 24 months.
e) A letter from the Chairman of the multi-agency risk assessment proving that the matter is a high risk victim of domestic violence or that within the last 24 months there has been a plan put in place to protect the victim from the perpetrator
f) A report from a health professional confirming that the Applicant has been examined within the last 2 years and that the Applicant had injuries on a condition consistent with a victim of domestic abuse and that there is no reason to believe that the injuries on condition were not caused by domestic violence.
The theme that runs through these regulations is the arbitrary time limit of 24 months and it this ruling which is claimed to be creating an artificial barrier to victims of domestic abuse of being able to apply for Legal Aid.
It is quite possible for example for a person to have obtained a Non Molestation Order 25 months ago and for that Order to have run for a typical period of 12 months and will have expired. The victim may not have seen anything more of the perpetrator but the perpetrator might have surfaced 25 months later and be pursuing an application relating to children or financial issues.
However, because the Order was made 25 months ago and is no longer in force then this does not come within the regulations, even thought the person responsible for the abuse may pose as much as a risk as they did previously. The 24 month rule therefore creates an illogical cut-out point which may bear little relevance to the actual level of risk at present.
It will be interesting to see if the regulations will be reviewed in the future once the full effects of the 24 month timescale can be seen.