In the case of R(Rights of Women) v The Secretary of State for Justice and the Lord Chancellor  EWCA Civ 91, it was upheld that the regulation stating that domestic violence evidence must be within the last two years in order for the client to qualify for Legal Aid. As a result of this case, there have now been new interim regulations introduced to cover the eligibility of domestic violence evidence in applications for Legal Aid.
The Ministry of Justice have released legislation (Civil Legal Aid (Procedure) (Amendment) Regulations 2016) which amends the appealed regulation, 33(2). The new regulation (2(2)) sets out that the time limit for the evidence of domestic violence to be valid is sixty months, or five years, in comparison with the previous 2 year rule. In addition, the regulation adds a new category of evidence in relation to financial abuse but this is dependent on the director of the Legal Aid Agency being satisfied that the evidence shows financial abuse.
The new regulations came into force on 25 April 2016, but it should be noted that these are only interim regulations and so the required time limit may change again when permanent regulations are brought into force.
The Justice Minister, Mr Vara said in a written statement, "We continue to believe that victims of domestic violence in private family disputes should receive legal aid where evidence is provided, and the Court of Appeal has agreed that the Lord Chancellor has the power to make arrangements in regulations to allow this. But there are areas where we need further information-for example, the number of individuals who have evidence over two years old. We also need to more fully appreciate the issues in play in cases of financial abuse, on which there is only limited research available. We have begun work with domestic violence support groups, legal representative bodies and colleagues across government to gather data and develop our understanding of these issues. Our findings will be used to inform an evidence-based solution to the court's concerns, with the aim of drawing up replacement regulations... We are expediting implementation of these changes so they will come into effect on Monday 25th April in order to make sure that victims of domestic violence can receive the support they need as soon as possible, and to give certainty to those considering applications for legal aid. We believe that these arrangements address the court's concerns while work continues to find a sustainable longer-term solution."
The regulations also extend the definition of “protective injunction” which is one of the categories of evidence which can be adduced to show there has been domestic violence in a relationship. Under the new regulation 2(3) female genital mutilation protection orders and violent offender orders are now acceptable to be adduced as evidence of domestic violence. This change will come into effect on 16 May 2016.
Nicola Whitley, Senior Associate and Head of Family Law at Swain & Co Solicitors says, “At Swain & Co we are passionate about ensuring access to justice for everyone, especially the most vulnerable in our society. I therefore welcome these new regulations which relax the timeframe for evidence of domestic abuse. However, looking forward, I would have to query whether it is right to set any timeframe on such evidence as domestic abuse can have far reaching consequences in a person’s life.”