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Abuse victims are still up against the clock
The government’s recent concession over the two-year cut-off for evidence of domestic violence was hard won but there is still more work to be done to ensure that vulnerable women like S are protected, say Cris McCurley and Jenny Beck
On 14 June 2013, Ben Hoare Bell’s family team was instructed by S, a woman with significant learning and physical disabilities. On the advice of children’s social care, she had left her violent ex-partner, who then sought contact with their child. In spite of the poor quality of his previous contact, he was granted limited supervised contact and parental responsibility, which he had not applied for. S maintained the order would leave her open to further abuse.
An application was made on the Legal Aid Agency’s (LAA) client and cost management system (CCMS) to amend her certificate to include an appeal against the grant of parental responsibility. The CCMS required S’s solicitor to confirm that her domestic violence (DV) evidence was current, ie within the 24-month period set out in LASPO. This was a new requirement and the assumption had been that DV evidence had to be current at the point of application for legal aid. It hadn’t occurred to anyone that evidence might ‘expire’ during the lifetime of a case. Clarification was sought from the LAA. The LAA responded that ‘the evidence does not expire as such while the work covered by the original determination is carried out, the issue will be in relation to any further applications made for a change to the form of service ie Family Help (Higher) to Legal Representation or to add new proceedings to the certificate, or as in this case, where a change of scope is sought’.
This meant that just as a case reached its most challenging phase – a potentially contested final hearing likely involving cross-examination – legal aid could be withdrawn, leaving the victim unrepresented, to face a perpetrator in court.
Legal Aid Agency domestic violence evidence timeframes
Regulation
Evidence
Point from which 24-month clock starts ticking
Reg 33(2)(b)
Police caution
Date of issue
Reg 33(2)(h)
Letter from health professional confirming DV
Date of examination
Reg 33(2)(i)
Letter from social services confirming client at risk of DV
Date of assessment
Reg 33(2)(l)
Referral by health professional to DV support service
Date of referral
Not only would this have devastating implications for vulnerable clients, it also seriously undermined the Ministry of Justice’s insistence that legal aid would continue to be available to DV victims. If correct, a practitioner would have to decide at the outset whether the evidence had sufficient currency to see a case to a conclusion, or whether they might have to abandon a vulnerable person at the door of the court. Could a case be commenced if the DV evidence was 18 months old? 20 months? The perpetrator could simply stall the timetable with dire consequences for justice.
Legal aid minister Shailesh Vara insisted this was an unforeseen effect of LASPO and the MoJ had no intention of revoking a DV victim’s legal aid mid-case.
However, the LAA confirmed that DV evidence expires 24 months from the date of the violent incident. Its suggested solutions were to secure fresh evidence or apply for exceptional case funding.
This placed victims and practitioners in an untenable position, and in February 2015, representatives from the Legal Aid Practitioners Group, Resolution, Rights of Women and the Law Society met the MoJ and the LAA to discuss the issue.
After nearly six months’ delay, the MoJ announced a change to the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098, stating that if an application were made to amend the certificate from legal help higher to legal representation, the LAA was not required to request an update of the DV evidence proof. The same is true if there needs to be a costs extension. This is welcome, but leaves unresolved the position with DV evidence in situations where, mid-case, there had to be a change of scope (such as in S’s case).
The LAA has clarified DV evidence timeframes (see box).
This small but highly significant area of the legislation impacts thousands of DV victims who need protection for themselves and their children. It is vital that we keep talking and providing evidence to the LAA and the MoJ to continue to effect change.

About the author(s)

Description: Cris McCurley
Cris McCurley is a partner at Ben Hoare Bell.
Description: Jenny Beck - author
Jenny Beck is co-founder of Beck Fitzgerald.