Lord Justice Fulford and Mrs Justice Lang DBE have rejected Rights of Womens much needed challenge against the regulations (regulation 33) on domestic violence. For practitioners who work in the field of domestic violence and for people who care about gender based violence this is a disappointing and somewhat confusing blow.
Rights of Women submitted that ‘regulation 33 is ultra vires section 12(2) of LASPO 2012. It only empowers the Defendant to “make provision for the making and withdrawing of determinations” under section 9, which sets out the criteria for eligibility, by reference to paragraph 12 of Schedule 1. It is apparent from the types of provision listed in section 12(3) that the regulations are intended to be procedural in nature. However, regulation 33 imposes inflexible evidential requirements which go beyond the eligibility criteria in section 9 and paragraph 12, and which have the effect of wrongly excluding applicants from the scope of legal aid.’
Further Rights of Women submitted that, ‘regulation 33 imposes requirements or conditions which thwart or frustrate the statutory purpose, applying the principle in Padfield v. Minister of Agriculture  AC 997. It impairs the right of access to legal advice and the courts in family proceedings by women (and their children) who have suffered physical and/or psychological harm as a result of domestic violence.’
Both arguments were rejected by the Court. Although the arguments were rejected the Court did find, inter alia,
“I am satisfied that the Claimant has shown a good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33. Typically, victims are excluded in circumstances where serious domestic violence led to a complete breakdown of the relationship, and then, more than 24 months later, there is an application by the perpetrator of the violence for contact with a child of the family, or ongoing contact arrangements break down. By the date of application for legal aid, their evidence of domestic violence is older than 24 months, but they remain fearful of their former partner.” and
“Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address.”
So the court have acknowledged that there are victims of domestic violence who should be able to have access to legal aid but can’t. They have said that the Government and parliament should address this problem.
The Court found that the lack of legal aid is not an actual bar to accessing the courts but of course for a victim of domestic violence having no representation and having to challenge their perpetrator in person serves as a de facto bar.
Lets hope that Rights of Women can get the support they need to pursue this case further.
Barrister Garden Court Chambers
(views expressed are the authors alone)