Published:  10th June 2020

In the High Court on Tuesday 9th June, Public Law Project (PLP) acted in a challenge to the Legal Aid Agency’s (LAA) decision not to grant legal aid for family proceedings to a woman who had given an account of domestic violence at the hands of her ex-partner.

PLP’s client ‘Claire’ has been denied legal aid because the LAA’s interpretation of the means regulations allows it to take into account ‘trapped capital’ in the home she jointly owns with her ex-partner when assessing her eligibility, even though she is not in a position to access that equity.

On our client’s behalf, PLP is asking the court to make a declaration as to the construction of regulations 31 and 37 of the means regulations, and to quash the LAA’s decision of November 2019 not to grant her legal aid.

PLP Solicitor Katy Watts said:

“My client is seeking legal aid for family proceedings relating to child arrangements and the sale of her home, including when it is sold, where her children will live, and how the equity is shared between the parties.

“Acting as a litigant in person in those proceedings could involve having to cross examine her ex-partner – of whom she is completely terrified – whilst at the same time arguing complex points of law. It is unrealistic to think that anyone in that situation could represent themselves effectively. Our client receives Universal Credit and cares for two small children. There is no way she could pay for legal representation on her own. There is a very serious access to justice problem here.

“The Legal Aid Agency’s decision means that our client is expected to sell her house in order to pay for lawyers to represent her in proceedings which relate to the sale of her house. This is an absurd catch 22 that denies legal aid to highly vulnerable individuals.”

PLP’s legal argument draws on the constitutional right of access to the court which is inherent in the Rule of Law (Unison) and on Articles 6 and 8 of the ECHR.

PLP’s client, ‘Claire’ said:

“The legal aid agency is saying that I have to sell my house in order to fight to be in my house, or to get my fair share of it. It’s obvious that I can’t do that. The alternative is to represent myself. The idea of seeing my abuser again in court is utterly terrifying.”

Claire previously had to go to court on her own to keep contact and non-molestation orders in place.

“He was there with his barrister. His barrister was pushing for a ‘zonal order’ which would have allowed my ex-partner back into the house, but I had no idea what it meant at first. They were using legal jargon I didn’t understand.  That was the first time I had seen him or heard his voice in four weeks. He was really angry. It was awful. I was petrified. I had nobody to help me. When I heard his voice I was physically sick in the courtroom. There was such an inequality of power. He had his barrister and I didn’t have anybody. I was fighting on my own.”

“After that I had to go to court another three times about the child arrangement orders. By that point I had pro bono legal advice from a solicitor, but I still had to pay for the barrister to represent me at the hearings. My solicitor managed to get the barrister to agree to represent me at legal aid rates. But even at legal aid rates my Mum ended up taking out a loan and selling some of her furniture and her rings to pay for me to have a lawyer to represent me in court. She can’t afford to do that again, and I’m on Universal Credit.”

Olive Craig, Senior Legal Officer at Rights of Women said:

“We frequently speak to women who cannot afford to pay for representation but who are considered to be financially ineligible for legal aid because the test is so strict. In practice, the financial assessment is unnecessarily complicated and completely out of touch with reality. 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. You should not have to sell your home and make yourself and your children homeless to be able to access justice.”

Jenny Beck is a director at family firm Beck Fitzgerald who has acted for ‘Claire’ pro bono. She said:

“Sadly, Claire’s case is not unusual. Claire has already had go to court alone to protect herself. She was terrified.

“Legal aid is denied to about one in five of the women I see because of the way the scheme works. Even those living below subsistence level are denied proper access to justice. We are facing a real justice crisis here. There’s little sense in protective laws if normal people cannot access them.

“Those falling into this trap are very often women victims of abuse and in spite of a Government commitment to revisit these unfair rules, the position remains.”

The Law Society indemnified the client against the risk of adverse costs, without which PLP would not have been able to bring the case.

FURTHER INFORMATION

  • The case was heard on 9 June and judgment was reserved.  
  • If you have enquiries about the case, please contact us
  • If you need advice about family law or domestic violence, please contact Rights of Women or call the National Domestic Violence Helpline on 0808 2000 247.