In April 2013 drastic changes were introduced to the availability of legal aid for many family law cases. Statistics have now been published by the Legal Aid Agency (LAA) from which the severity of those cuts can be ascertained. In 2012-13, 127,767 legal aid certificates were granted. In 2013-14, this figure fell by almost 30% to 89,638. The most dramatic reduction was in relation to certificates granted for private law children proceedings falling 66% from 49,218 to 16,662.

The change that occurred was the introduction of a requirement to be able to provide evidence of domestic or child abuse to qualify for legal aid to deal with private children (mostly child arrangements proceedings) or financial cases. The evidence that could be relied on to prove abuse had taken place was very narrowly defined in the relevant Regulations and has been strictly interpreted by the LAA. There are numerous anomalies, for example relating to how old that evidence can be after which it can no longer be relied upon. Research carried out has suggested that 40% of those affected by violence are not able to produce evidence that falls within the prescribed definitions denying them access to legal aid altogether. A further difficulty is that in most cases where this evidence is required, the legal aid certificate will initially exclude representation at a final contested hearing. Before cover will be provided for a final hearing, further evidence of abuse has to be provided. If the time limit for that evidence has expired then legal aid will not be extended leaving that vulnerable victim of abuse without representation for the final part of the proceedings.

A legal challenge was brought questioning the legality of these abuse evidence Regulations. The High Court has rejected that application. Mrs Justice Lang observed that there was an indication that the Regulations may not be working effectively in practice but did not accept that they were so restrictive as to have gone beyond the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It is understood this decision is to be appealed.

In another case, HHJ Bellamy (sitting as a High Court Judge) made an order, believed to be the first of its kind, requiring the Court Service to pay for the representation at a contested hearing of a father who did not qualify financially for legal aid. In the absence of that representation, the father would have had to cross examine directly a child who had made allegations of abuse against him. This type of order is being referred to as the ‘shadow legal aid scheme’.

The above could lead to a scenario where an abuse victim is represented in proceedings until a final hearing and then has to act in person because the time limit on the evidence of abuse has expired whereas the alleged perpetrator has no representation until that contested hearing and then has the benefit of representation paid by the Court Service. That cannot have been the intention of the scope changes and cannot be right.

For further information regarding Legal Aid please don’t hesitate to contact Farleys on 0845 050 1958, alternatively you can email us.