Published:  10th March 2023

The High Court has this week (8 March) overturned a decision by the Legal Aid Agency to refuse legal aid to a domestic abuse survivor. PLP’s client ‘Susie’ (not her real name) sought legal aid to enforce a child custody arrangement when her ex- partner breached their 50:50 care arrangement.

The ruling means that parents who share caring arrangements for their children are now more likely to qualify for legal aid in all areas of civil law (not only family law).

The High Court ruled that the means testing rules passed by Parliament allowed for a dependent to be treated as part of more than one household and the Ministry of Justice’s guidance was wrong (and unlawful) in this respect. The High Court judgment gave examples of children living part of the time with each parent and disabled adults living part of the time with different adult family members who cared for them.

The High Court also ruled that the LAA should have taken into account the fact that Susie needed legal aid to enforce the previous agreement (where her child had been living in her home more often) when it made the decision to refuse her legal aid. The Legal Aid Agency (LAA) had decided that Susie was financially ineligible for legal aid, applying guidance from the Ministry of Justice (MoJ) which said a child could only be a member of one household. This meant Susie’s son was not treated as part of her household. As a result, the amount of ‘disposable’ income she was assessed as having was increased and she did not qualify for legal aid.

The judgment means that:

  • The LAA have to remake the decision about whether Susie qualifies for legal aid.
  • The MoJ will need to update its guidance to reflect the decision.
  • Parents who share caring arrangements for their children are now more likely to qualify for legal aid in all areas of civil law (not only family law).

Daniel Rourke, Susie’s solicitor in the case, said:

“We are delighted that the High Court has recognised the errors made by the Legal Aid Agency in refusing to grant Susie legal aid and held that the underlying guidance applied was unlawful. That guidance will now need to be changed.

“In Susie’s case, due to the unlawful guidance, her abuser stood to benefit from his own breach of their previous agreement. In taking their child to live with him against her wishes, he also took away her ability to challenge him, as she became ineligible for legal aid.

“The family proceedings were already a source of great stress and anxiety for Susie, which was only exacerbated by concerns that she would be unable to access legal representation and would have to face her abuser in court alone.

“Legal aid is an essential pillar of our justice system and should be accessible to those who need it most. The impact of this judgment is not limited to family law and should lead to other people who share care of a dependent being able to access legal aid more easily.”

Legal arguments

Lawyers for Susie successfully argued that:

  • The guidance issued to the LAA by the Lord Chancellor is unlawful because it restricts the LAA from granting an allowance to a parent in this situation, whereas the regulations passed by Parliament make no such restriction.
  • The LAA failed to consider that the child was not living with her because of the abuser’s actions, and legal aid was needed to challenge that.

The judge did not concede on the final argument, which was that the decision to refuse legal aid breached Susie’s rights under Article 6 and/or 8 of the European Convention on Human Rights.

‘Susie’ said:

“I am so delighted at the outcome of my case. I have lived through such a difficult time over the last few years. I thought that if I left my abusive partner I would be able to enjoy time with my son in a peaceful environment. Instead, my ex-partner managed to coercively control my child into staying with him, so the abuse and control has continued.

“I was sure that I would get legal aid to contest what was happening as I had an extremely low income as well. I was absolutely distraught to find I couldn’t because my child was classed as not a dependent, or part of my household. This ruling should now mean that people do have the possibility of obtaining legal aid if they are put in an impossible situation, as I was and therefore also the possibility of getting the support they need to fight for justice for themselves and their child.”

Jane Campbell, a partner at Makin Dixon solicitors said:

“Makin Dixon are proud to have supported this challenge and view this as a positive step towards better access to justice for other domestic abuse victims in similar situations.

“As Susie’s family solicitors she was supported by our expert family law team at risk of not being paid as we believed the denial of her legal aid to be unlawful. Without access to a legal team she would have had to face her abuser alone.

“It is critical that victims having had the courage to leave an abusive relationship, then have the confidence that legal aid will be available to help them obtain legal protection for themselves and their children, to help them move forwards with their lives.”

Law Society of England and Wales Head of Justice Richard Miller said:

“We are delighted at the outcome of this case, particularly as the LAA will now have to reconsider its decision in Susie’s case.

“The LAA’s lack of flexibility in applying its rules around who can receive legal aid was clearly leading to an injustice in this case. Susie can now have the representation that she is entitled to and will not be left to represent herself against her abuser in the family court.

“We are pleased that today’s ruling will mean more parents in similar situations can be properly represented and that this applies not only to family cases but other areas of civil legal aid.”

Read our practice note on how to apply this judgment when making legal aid applications

Read media coverage of the case:

  • Haroon Siddique in The Guardian on 6 March and 9 March
  • Monidipa Fouzder in The Law Society Gazette on 9 March
  • Tom Pilgrim for The Belfast Telegraph on 9 March

Notes to editors

  • Legal aid is subject to a means and merits test
  • The case was heard in the Administrative division of the High Court in London on Tuesday 7 March
  • The solicitor in the case was Daniel Rourke, Public Law Project, with counsel from Chris Buttler KC and Emma Foubister, Matrix Chambers.
  • PLP’s response to the Means Test review consultation is here. While some of the proposals are welcome, others are extremely concerning. A proposal to remove Universal Credit passporting will leave some applicants with unaffordable contributions and threaten the viability of legal aid practices.
  • The Law Society provided indemnity against adverse costs.