In April 2013, the government introduced swathing cuts in the scope of legal aid for family cases. Legal aid remained available for most cases where a local authority was involved in the welfare of a child and for mediation but the vast majority of other family cases were made subject to what has been referred to as the ‘domestic violence’ gateway. In other words, to be eligible for legal aid an applicant had to produce evidence that they were the victim of, or at the risk of, domestic violence. These rules have been interpreted very restrictively. If the evidence produced did not fit very specific requirements then legal aid would be refused. When first introduced, for the most part, the evidence required had to be from the previous 12 months. This was later extended to 60 months.
I think it is unfortunate that the relevant Regulations continue to refer to ‘domestic violence’ rather than ‘domestic abuse’. Those Regulations acknowledge that ‘domestic violence’ does not need to involve actual physical violence and that such abuse covers a much wider range of behaviour but the phraseology could be better to get the message across.
In September 2017 the final report of the Bach Commission was published following 2 years of reviewing the 2013 legal aid changes. The report identified that early access to legal advice in appropriate cases may stop small issues snowballing in to much larger issues. This is something that family law practitioners are familiar with. Once a party becomes entrenched in an approach it becomes more difficult to change that and it is far better and easier to be able to encourage a more appropriate approach at the beginning of a dispute.
The report recommends a major overhaul of the legal aid system including increases in eligibility and scope of legal aid. In response to the report amended Regulations are expected to be brought in to effect from 8 January 2018 to increase the forms of evidence of domestic abuse. The 60 month time limit will be removed and the people who will be permitted to provide that evidence will be extended. These reforms are small in comparison to the recommendations of the Bach Commission but will be welcomed by those who may now find it possible to secure legal advice and representation where it was not available before. What further reforms may follow only time will tell.
If you want to check your eligibility for legal aid in a family matter, contact our Family Law Team on 0845 287 0939 or submit your enquiry online through our contact form.