Domestic Abuse update – qualifying for Legal Aid, and how to safely engage in remote hearings

The restrictions placed on households due to Covid-19 have had a well-documented effect on victims of domestic abuse. The charity Refuge reported an 80% increase in calls to its National Domestic Abuse Helpline in June 2020 alone. Although a legal framework exists to offer protection to those in need, such help may be harder to access during the pandemic. Court delays are significant, access to lawyers who are working from home can be more difficult, and asking for help while living in the same house as an abuser is a significant risk.

There is some good news, however. A recent decision on entitlement to Legal Aid is likely to mean that more victims of domestic abuse can receive it, and the Family Justice Council has issued guidance on how to support victims during remote and hybrid hearings. I will consider both in this article.

The High Court decision in R (on the application of GR) v Director of Legal Aid Casework & Anor [2020] EWHC 3140 (Admin) means that victims of domestic abuse who jointly own property, but who cannot use it to raise funds for legal representation, must not be automatically denied Legal Aid if they would otherwise qualify for it. It applies to the common situation in which the property is jointly owned with an ex-partner, against whom legal proceedings are intended or in train, and cannot be sold or mortgaged without the consent of that person.

The judge was willing to take judicial notice of the fact that (i) commercial lenders are unlikely to advance monies on a jointly owned property without the consent of all co-owners, (ii) that “[a]nyone locked in acrimonious family litigation following the breakdown of a relationship would be unlikely to agree to assume joint and several liability for the repayment of monies borrowed to fund his or her former partner’s legal representation” and (iii) abusers could seek to exert continued control over their victim by denying them legal representation in this way.

The judge took a purposive reading of the relevant legislation, in line with Articles 6 and 8 of the Convention. The key issue was whether the valuation of an interest in land – defined in regulation 37 of the Means Regulations as “the amount for which that interest could be sold after deducting…the amount of any debt secured” – could be read in line with regulation 31 in which the value of “any resource of a capital nature” was to be taken to be its sale value “or…the value assessed in such other manner as appears to the Director to be equitable”. In other words, did the Director have a discretion in attributing a nil value (or some other value) to property which was in effect ‘trapped’ and could not, in reality, be utilised to fund legal representation. The judge held that the discretion in regulation 31 could be applied to the definition of the value of land in regulation 37, and therefore the Director could use such discretion. The case has been remitted for the Director to further consider, in light of the judgment.

Also of interest to advocates is the guidance on Safety from Domestic Abuse and Special Measures in Remote and Hybrid Hearings, issued by the Family Justice Council in November 2020 and endorsed by the President. It applies to all family proceedings in which domestic abuse is or may be an issue. It should be considered in all cases where hybrid or remote hearings are used, whether or not the victim is represented.

The Guidance highlights issues which are specific to the use of technology and non-attendance at court. Some are obvious, others are not. It asks questions of the reader: what are the child care arrangements during the hearing? What would be the impact on the child if the resident parent had a distressing experience during the hearing and was then required to resume their care? Will the abuser be able to see and note the victim’s home during a video call? This can be their “private, safe space, which may also be used to track them down”.

Recommendations are made: giving advice on how to ensure a blurred or generic background on video calls, the early sending of remote hearing links so that the participants are not flustered or anxious, ensuring that the lay parties are the last to be joined to the call and should never be left alone.
The Guidance is extremely helpful, and is recommended to all family practitioners. It should also be considered by all parties well in advance of a hearing.
The full Guidance can be found at: