Steve Hynes reflects on the domestic violence gateway regulations, which were introduced to implement the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and the battles that charities and lawyers have fought to overturn them.
Revised regulations on qualifying for legal aid in private law family cases were introduced from 8 January 2018: Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 SI No 1237. These regulations mark the final victory in the campaign to abolish the time limits on admissible evidence of domestic violence (DV) to qualify for legal aid. There are still barriers preventing DV victims obtaining the legal assistance they need in private family law cases, but the government has caved in on the worst aspects of the regulations, which were introduced from April 2013. This victory was won by the charities and lawyers who fought a sustained and tenacious campaign to overturn these controversial regulations.
Close vote in the Lords
Private law family cases were the main target of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) cuts. Cases concerning disputes over the financial settlements in divorce/relationship breakdown, contact/residence of children and other legal matters related to relationship breakdown were removed from the scope of legal aid. The number of cases has fallen from pre-LASPO levels of over a quarter of a million to just under 14,000 in 2016/17 (Bach Commission on Access to Justice, The right to justice
: Appendix 5, An analysis of the evidence by Sir Henry Brooke
, September 2017, page 11).
At the outset of the process that would lead to the LASPO cuts, the then coalition government stated its intention to allow legal aid to continue for cases involving DV and forced marriage (Proposals for the reform of legal aid in England and Wales
, Consultation Paper CP12/10, Cm 7967, Ministry of Justice, November 2010, pages 41–43). The government feared an upsurge in cases in which people would claim they were victims of DV to qualify for legal aid and so it sought to draft restrictive qualifying rules.
As the LASPO bill made its way through the legislative process in parliament, the government tried to fight off amendments concerning victims of DV qualifying for legal aid. Initially, it wanted to include in the bill a narrower definition of DV. Campaigners and parliamentarians eventually forced the government to change the definition to that used by the Association of Chief Police Officers (ACPO), which has been widely adopted across the public sector, including by the Home Office. ACPO defines DV as:
… any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults … who are or have been intimate partners or family members, regardless of gender or sexuality.1Steve Hynes, Austerity Justice, LAG, 2012, p121.
Baroness Butler-Sloss, a former senior family court judge and a crossbench peer, was among the parliamentarians who wanted the government to publish the criteria that it intended victims would need to meet to qualify for legal aid. The government refused to publish the proposed regulations, but made some concessions including increasing the time limit on evidence of DV from one to two years before an application for legal aid.
Baroness Scotland, the former attorney general and Labour peer, argued that the imposition of a time limit showed a complete misunderstanding of DV and how the victims will often experience abuse for years before they decide to take action. She also argued that more agencies should be included among those able to provide evidence of DV, as many women were turned away from the sorts of specialist DV services the government wanted to restrict it to (Rights of Women (RoW) and Welsh Women’s Aid, in a survey conducted on 16 June 2011, showed 224 women had been refused places in refuges in the main due to lack of beds).2See note 1, p123.
Her amendment on this issue was supported by a small majority in the Lords, but rejected by the Commons. When it returned to the Lords for a third time, the vote was tied on 238 each. If the amendment had won a majority in this third vote, the government would have had to accept it; as it was a tied vote, under parliamentary convention the amendment fell.
Amendments to the gateway regulations
Cris McCurley believes Rights of Women played a crucial part as it ‘kept producing empirical evidence of women not able to obtain legal aid in domestic violence cases’.
Katie Ghose, chief executive of Women’s Aid, believes the DV gateway regulations approved after LASPO was passed restricted many survivors from claiming legal aid as they had ‘never seen a criminal case or conviction against the perpetrator or would not have access to “proof” within a two-year time-limit, but [were] still living with the serious and life-long impacts of domestic abuse’. Women’s Aid and other charities kept up the pressure on the government to change the regulations. Family law specialist Cris McCurley, a partner at Ben Hoare Bell, believes RoW played a crucial part in the campaign as it ‘kept producing empirical evidence of women not able to obtain legal aid in domestic violence cases’.
The gateway regulations were amended from April 2014, widening the range of organisations that could provide evidence of DV. In the following year, they were amended again to include women at risk of genital mutilation and victims of trafficking. In February 2016, RoW brought a successful challenge to the regulations in the Court of Appeal (R (Rights of Women) v Lord Chancellor  EWCA Civ 91
). The court ruled that the evidence requirement to qualify for legal aid had led to a ‘formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases’ (para 44).
From April 2016, the government introduced alterations to the legal aid regulations (Civil Legal Aid (Procedure) (Amendment) Regulations 2016 SI No 516) that changed the requirement to produce evidence of DV within a 24-month period prior to the legal aid application to 60 months and set out criteria to prove financial abuse.
Government policy change
On 17 February 2017, Theresa May announced plans for new laws to increase prosecutions for DV and new measures to assist victims (‘Prime minister’s plans to transform the way we tackle domestic violence and abuse
’, press release). Her ambition, she said, was to ‘completely transform the way we think about and tackle domestic violence and abuse’. As part of this raft of measures, the then justice secretary, Liz Truss, also committed the government to amending the regulations on qualifying for legal aid to scrap the five-year qualifying period.
It was early last year that the government started privately consulting the charities and lawyer groups concerned with influencing the new regulations. This was the start of a frustrating period in which, McCurley says, the ‘failure to provide adequate provision for legal aid in DV cases did not match up to the government’s own violence against women strategy’. According to McCurley, they ‘were back to square one when we got a new lord chancellor and ministers after the general election’.
There is a strong suspicion that some within government have dragged their feet over the amendment of the DV legal aid regulations because they fear the consequences for the legal aid budget rather than for victims. Dominic Raab was the minister responsible for legal aid until the recent reshuffle (see page 4). In meetings and debates on legal aid, he was always careful to avoid making any commitment to expand the scheme, but it fell to him to announce the changes to the DV regulations in December last year. He told the Guardian
: ‘We have listened to victims’ groups and carefully reviewed the criteria for legal aid for victims of domestic abuse in family cases’ (Owen Bowcott, ‘MoJ scraps legal aid restrictions for victims of domestic violence
’, 4 December 2017).
Katie Ghose hopes the changes ‘will ensure survivors can access justice and help transform their experience of the family courts’.
Ghose hopes the changes ‘will ensure survivors can access justice and help transform their experience of the family courts’. McCurley laments that ‘it has taken until now to implement international law, while in the meantime hundreds of women have lost their right to legal aid in domestic violence cases’.
There is widespread concern among the judiciary about the increase in litigants in person clogging up the family courts system. At an event to mark his retirement, Bodey J, a senior Family Division judge in the High Court, said it was 'shaming' having to preside in cases in which litigants in person struggled with court procedure (Owen Bowcott, ‘Senior judge warns over “shaming” impact of legal aid cuts
, 13 October 2017).
The late and much lamented Sir Henry Brooke was told by an experienced district judge that ‘[e]very day in the family court with so many unrepresented litigants is a living nightmare. So very many have mental health problems, drug, language, learning difficulties. I can no longer do justice or protect the vulnerable child or adult – I am in despair’ (The right to justice: Appendix 5
(see above), page 14, footnote 23). Legal Action
also understands from some practitioners that the family courts are under such pressure from the high number of public law children cases that judges are trying to discourage contested hearings in some private law family cases.
McCurley says: ‘Cuts around the justice system are contributing to a situation in which women are put at risk.’ She argues that many family clients have multiple problems, such as with housing and benefits, in which it is almost impossible to refer them on for expert advice.
Legal Action welcomes change on the DV regulations, but this has to be viewed within the context of a civil justice system that is under increasing strain. Local authority and other cuts in the sorts of services, such as refuges, on which DV victims rely for support are ratcheting up this pressure. The government needs to recognise this and respond with a co-ordinated and resourced strategy if Theresa May’s ambition referred to above is ever to become a reality.