17th July 2015

Head of the International Family department Cris McCurley has been very active both as a member of the United Nations CEDAW Committee Shadow Report writing group and as a member of Justice Alliance in campaigning to change the rules demanding that victims of domestic abuse provide evidence that they are “genuine victims”. Perhaps one of the most controversial aspects of this change in circumstances came to light in October 2014. Ben Hoare Bell had been instructed by S. S is a woman who suffers from a learning disability and Cerebral Palsy. She was taken to court by her violent ex-partner who wanted contact with her child.

At the time the case started in 2013 she had an ongoing MARAC plan. By the time the case was ready for a final hearing, the court had made a Parental Responsibility Order for the abusing father even though he had not applied for one.

S rightly said that this would make her even more vulnerable and she wanted to appeal it. First her Legal Aid had to be amended to include the Parental Responsibility issues.

It was only at that stage that it was realised that the Legal Aid Agency had added a new condition to Legal Aid amendments, namely that the Solicitor had to guarantee that the Legal Aid evidence was still in date, meaning less than 24 months old.

Cris then contacted the Legal Aid Practitioners Group, the Law Society and Resolution to ask if practitioners, nationally, were aware of this apparent rule change. Up to that point it had always been assumed that the domestic violence only had to be less than 24 months old at the time of applying for Legal Aid at the start of the case.

None of the professional organisations had heard of this rule change. Cris was then contacted by Nick Bowes, the Special Parliamentary Advisor to the then Labour Shadow Justice Secretary Sadiq Khan. Nick offered to put forward parliamentary questions in relation to this issue.

In December parliamentary questions were put to the Conservative Legal Aid Minister Shailesh Vara, who replied in writing that it was never the intention of the Legal Aid Agency to remove Legal Aid from vulnerable people once the case had started.  Relief was short lived when this was followed by a letter from one of the directors of the Legal Aid Agency telling us that they would be removing Legal Aid from victims of domestic violence, no matter what stage the case was at, once the domestic violence evidence reached the age of 24 months, and that the relevant date for calculating 24 months was the date of the violent incident.

This left both victims of violence and lawyers in an unacceptable position. Not only did we have to consider when we met a client for the first time whether we could get their case started and finished before the evidence of violence “past its sell-by date” but that clients that we were already acting for would have to be reassessed.

We asked for a meeting with the Ministry of Justice and in February of this year Cris met with representatives of the Legal Aid Agency and Ministry of Justice with colleagues from the Law Society, Resolution and Rights of Women. The meeting was very productive and the Ministry of Justice promised to look into ways around this difficulty, having confirmed that they did not intend to take Legal Aid away once it had been granted. Cris and the others pointed out that starting a case and then leaving a client in the lurch would leave the client in a far worse position potentially at the most critical part of the case.

The Ministry of Justice said that they could not do anything about a rule change before the election because they did not want to “tie the hands of any future government”. It has taken 9 months, 2 meetings and 3 parliamentary questions, but we finally got the answer that the domestic violence regulations would be amended to confirm that Legal Aid would not be removed once the case had started due to the age of domestic violence evidence.

This is a small but very important victory in the ongoing fight for access to justice for victims of violence.