The evidence for domestic violence that is required for an application for legal aid to be made in private family law cases has been now been amended from two years to five years preceding the date of the application.
The rules in relation to obtaining Legal Aid in private family law cases changed significantly on 1 April 2013. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”) governs the provision of legal aid from 1 April 2013. According to the Legal Aid Agency’s guidance “One of the key changes introduced by LASPO is that legal aid for most children and finance matters in private family law cases will only be available where a client has specific evidence in relation to domestic violence or child protection. The evidence that is required in order for an application for legal aid to be made in these matters is prescribed in the Civil Legal Aid (Procedure) Regulations 2012 (“the Procedure Regulations”) as amended. Regulation 33 deals with evidence relating to domestic violence and Regulation 34 with evidence relating to child protection.”
Prior to 25th April 2016 many of the prescribed forms of evidence in relation to domestic violence “must relate to incidents within the twenty four month period immediately preceding the date of the application for legal aid. This time period applies individually each time a new application for a determination is made.”
On 18th February 2016 however in The Queen (on the application of Rights of Women) v The Lord Chancellor and the Secretary of State for Justice, the Court of Appeal ruled that regulation 33 of LASPO that requires proof of domestic violence to be given within a 24-month period before any application for legal aid is made is “invalid.”
Following this Court of Appeal ruling the Legal Aid Agency amended the 24-month limit to five years.
Regulation 2(2) of the Civil Legal Aid (Procedure) (Amendment) Regulations 2016 “substitutes a new regulation 33(2) which sets out the forms of evidence of domestic violence which must be provided with an application for civil legal services under paragraph 12 of Part 1 of Schedule 1 to the Act. The new regulation 33(2) includes a time limit of sixty months for certain types of evidence of domestic violence, or risk of domestic violence.” This regulation came into force on 25th April 2016
This is a great relief for victims of domestic violence (and their advisors) as greater protection is now afforded to those victims. It also takes away the absurdity of the previous 24-month time limit which meant that in many cases, whilst the evidence of domestic violence could be used initially when making an application for legal aid, by the time a contested final hearing was listed the domestic violence evidence may have expired the 24 month period, meaning that the victim of domestic abuse could no longer be covered by legal aid for representation at the final hearing thereby forcing them to face their abusers in court without legal representation. The very risk that brought in this exception in the first place.
If you require advice as to whether you are eligible for legal aid in any family law matter please contact our specialist family team for advice on 020 7935 3522.