×

Domestic abuse survivor shut out of legal aid challenge against Ministry of Justice

Published:

A single mother (‘Susie’) who is also a survivor of domestic abuse is taking the Legal Aid Agency (‘LAA’) and Ministry of Justice (‘MoJ’) to the High Court in London on 7 March for refusing to grant her legal aid she needed to enforce a child custody arrangement.

If the challenge to the LAA and MOJ is successful, it will mean that Susie will be able to access legal aid for any a further dispute about her child and that other survivors in similar situation will be better able to enforce custody arrangements.

After Susie’s abuser took their child to live with him – in breach of agreed custody arrangements – the LAA considered her as having no dependents and therefore allowed only £545 per month of accommodation costs to be factored in when assessing her eligibility for legal aid.

Susie’s inability to pay for private representation was also not taken into consideration by the LAA.

Susie’s solicitor, Daniel Rourke from the Public Law Project, said:

“Without legal aid, Susie has an impossible choice: give up custody of her child or face her abuser in court alone.

“The MoJ guidance does not account for domestic abuse survivors who need access to legal aid to restore a custody arrangement. By unilaterally changing the arrangement against her wishes, Susie’s abuser effectively cut off her access to the legal assistance she needed to restore that original arrangement.

“We hope this challenge will mean Susie and others in her situation can access legal aid, and that the MoJ changes its guidance to ensure they do not experience the same barriers to justice.

“When our legal aid system is not protecting people at their most vulnerable, it needs a serious re-think.”

Legal arguments

Susie is represented by lawyers at the Public Law Project. They will argue:

  • 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 decision to refuse legal aid breaches her rights under Article 6 and/or 8 of the European Convention on Human Rights.

Concerns around access to legal aid have been raised repeatedly, and the MoJ is yet to respond to a consultation on the Legal Aid Means Test that began in 2021. The financial limits for legal aid have not been increased since they were set in 2012. Many of the limits have been in place for decades.

Susie has been able to bring this case with the support of the Law Society, which has provided an indemnity against adverse costs orders. After having to borrow to pay lawyers privately, she was eventually supported in the underlying family proceedings by Makin Dixon Solicitors, who took the risk that they will not be paid if the judicial review case is unsuccessful.

Susie, PLP’s client, said:

“I eventually escaped a relationship which was incredibly abusive; only to be further abused by a legal aid system which vilifies those who are trying to make a home for their children and to rescue them from further abuse.

“There is no way that I could have challenged, or even faced my previous partner myself in court without representation, I was emotionally and psychologically wrecked by my experience. The allowance of £545 per month for housing is unrealistic and doesn’t even cover the cost of renting a one-bedroom flat in my area. The system needs to be updated so that the abuser is not allowed to retain power even after the relationship has ended.”

Jane Campbell, a partner at Makin Dixon Solicitors said:

“There is a clear injustice in denying victims of domestic abuse legal aid based on living costs being capped which fails to recognise the actual cost of living as it is today. It is critical that victims having had the courage to leave an abusive relationship then have the confidence that legal aid will help them obtain legal protection to help them move forwards with their lives.

“Legal aid for domestic abuse victims being means tested goes against the social expectations of our communities. The fact that the LAA do not undertake an analysis of whether a victim can actually afford to pay privately is absurd.

“Makin Dixon are proud to support this challenge and hope to achieve a positive step towards better access to justice for our client and for other women in a similar situation.”

Law Society of England and Wales President Lubna Shuja said:

“Applying general guidance too strictly risks reinforcing injustice, rather than tackling it. The LAA’s decision in Susie’s case is a good example of this.

“It seems unlikely that Parliament could have intended such an outcome and we hope either the LAA itself or the court will overturn the decision, so Susie and others in similar situations can be properly represented in the family court.”

Notes to editors

  • The case will be heard in the Administrative division of the High Court in London on Tuesday 7 March
  • The solicitor in the case is 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.
  • Public Law Project is a national legal charity who represents and supports individuals and communities who are marginalised through poverty, discrimination, or disadvantage when they have been affected by unlawful state decision-making. Their vision is a world where the state acts fairly and lawfully and mission is to improve public decision making, empower people to understand and apply the law, and increase access to justice.