Owen Bowcott and Alexandra Topping The Guardian Wed 25 Nov 2020
Decision is victory for victims who have homes which cannot be sold or borrowed against.
Victims of domestic abuse should not be denied legal aid because they have assets trapped in a home, the high court has ruled.
The judgment has been handed down as a legal watchdog warns that those who need legal services are being failed partially because of cuts to legal aid.
The domestic abuse ruling by Mr Justice Pepperall concluded that a single parent and domestic abuse survivor who had only £28 in the bank should not have been refused legal aid for a child custody case.
The decision, according to campaigners, means the Legal Aid Agency can adopt a less restrictive approach over granting help to survivors of domestic abuse where they have “trapped capital” in homes which cannot be sold or borrowed against.
The LAA will have to reconsider whether to grant legal aid to the woman who has only been identified as “Claire”. The Public Law Project, which supported her, argued that many domestic violence survivors are denied by the LAA’s strict interpretation of its rules.
Daniel Rourke, a PLP lawyer, said: “No one should face an abusive former partner in the family court alone because they cannot afford legal representation.
“The ruling has implications for other women in Claire’s position. The LAA will have to carefully consider whether it is appropriate to include the value of their homes when considering their applications for legal aid.”
Claire said: “This ruling could mean I won’t have to face my abuser in court without being represented. The last time I had to face him in court was horrendous. I had to speak for myself whilst he was there with a barrister. I was so nervous and scared that I was physically sick in the courtroom. My mum has already taken out so many loans to help me through this so hopefully she won’t have to do that anymore.
“If it means that other women won’t have to face their abusers in court, that will be amazing. It really is an injustice being told you have to sell your house to fight your abuser.”
Olive Craig, of the Rights of Women, said: “We frequently speak to women who cannot afford to pay for legal advice but are considered to be financially ineligible for legal aid. We hear from victims of abuse who are having to resort to food banks to feed their children but are assessed as financially ineligible for legal aid.”
Meanwhile, the Femicide Census 10-year report, conducted by the campaigner Karen Ingala Smith, has found that the number of women in the UK killed each year by men has remained consistent at between 124 and 168 for the past decade.
In total it recorded 1,425 cases of women killed, by 1,419 men. In 46% of cases (658) the perpetrator had a history of violence, and in 29 had killed before. In 67% of cases of intimate partner violence, the victim had told someone about the abuse she was experiencing and in 55% of cases, the excessive violence and brutality used in the killing amounted to “overkilling”.
New research from Victim Support also found that victims of domestic abuse are being left in “limbo” and have been encouraged by police to take civil action rather than criminal prosecution due to the criminal court backlog of nearly 50,000 serious criminal cases.
“Ten years of cuts and court closures combined with the government’s incompetent handling of the pandemic has let victims down,” said the Labour MP David Lammy, the shadow justice secretary.
In a report published on Wednesday, the Legal Services Board said the legal market “does not meet the needs of consumers and society” and that “people who need legal services are being failed”.
Millions of people are unable to get help partially because of cuts in the availability of legal and pressure on advice agencies run by charities and other organisations, the report said.
Dr Helen Phillips, chair of the LSB, which regulates the legal sector, said: “It continues to be difficult for people to know when they have a legal problem and to engage with the legal services market and shop around. It also reflects policy decisions taken over a long period relating to the publicly-funded legal sector.”
The report said that 3.6 million adults in England and Wales have “an unmet legal need” involving a dispute every year. It calls for: “Widening public access to advice and support and ensuring that no one has a worse outcome or quality of service due to their background or life circumstances.”
• In the UK, call the national domestic abuse helpline on 0808 2000 247, or visit Women’s Aid. In Australia, the national family violence counselling service is on 1800 737 732. In the US, the domestic violence hotline is 1-800-799-SAFE (7233). Other international helplines may be found via www.befrienders.org