In February 2016, the Court of Appeal issued judgment in judicial review proceedings brought by Rights of Women in The Queen (on the application of Rights of Women) v The Lord Chancellor and Secretary of State for Justice.1 The case concerned the evidential criteria that victims or potential victims of domestic violence need to satisfy in order to be eligible for legal aid in private family law proceedings (such as those concerning child custody and contact arrangements following separation or divorce). The evidential criteria were introduced in April 2013 following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO) and are set out in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012.
The judgment declared that the evidential criteria frustrated the purpose of LASPO in two specific areas. These were the two year time limit and the lack of provision for victims of financial abuse. The Government chose not to appeal the judgment but instead laid regulations in April 2016 on an ‘interim’ basis.2 These regulations extended the time limit for evidence from two to five years and introduced a provision allowing the Legal Aid Agency (LAA) discretion to accept any form of evidence that they considered demonstrated financial abuse.
Upon laying the interim regulations the Minister that then had responsibility for legal aid, Shailesh Vara MP, noted that further evidence was needed to inform a longer term solution and described work that had been set in motion to ‘inform an evidence based solution to the court’s concerns, with the aim of drawing up replacement regulations’.3 This report describes the background, methodology and findings of the research undertaken by the Ministry of Justice during the summer of 2016 following on from these events.