Smoke and Mirrors? Regulation 12 and Access to Legal Aid for Victims of Domestic Abuse

It is well documented that since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force in April 2013 there has been an increase in the number of victims of domestic abuse acting as litigants in person in applications for protective injunctions, with family court statistics indicating that around a third of applicants do not have legal representation. Studies consistently point to the strict legal aid means criteria as the reason behind this. Whilst scholars have considered this problematic status quo from the perspective of victim safety, wellbeing and the impact on potential outcomes, there is a paucity of literature challenging why this status quo exists at all, given that provision is made within Regulation 12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 for the Director of the Legal Aid Agency (LAA) to disapply the financial eligibility thresholds that a victim must satisfy to secure legal aid in applications for a protective order. By drawing on data obtained from a survey of 24 legal professionals and information provided by the LAA following Freedom of Information Act requests, this article seeks to address this gap in the literature and examine the use and value of Regulation 12. The findings indicate that the limited use of Regulation 12 can be attributed to a weak understanding amongst legal aid practitioners about the existence of Regulation 12, financial concerns amongst practitioners about not being remunerated by the LAA for work completed on files (where the financial eligibility criteria are not disapplied) and an absence of clear guidance for the Director as to the use of their discretion. The findings are timely in suggesting there is a need for reform in this area to better support victims, as is currently being considered by the ongoing Legal Aid Means Test Review.