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Legal aid: Parents’ access to advice set to be widened following High Court ruling

The High Court has overturned a refusal of legal aid in a ruling that means parents who share caring arrangements for their children are now more likely to qualify for legal aid.

The Public Law Project’s brought the case on behalf of domestic abuse survivor “Susie” who sought legal aid to enforce a child custody arrangement when her ex- partner breached their 50:50 care arrangement.

The High Court ruled that the current means testing allowed for a dependent to be treated as part of more than one household and that the Ministry of Justice’s guidance was wrong – and unlawful – in this respect.

The judgment gave examples of children living part of the time with each parent and disabled adults living part of the time with different adult family members who cared for them.

The High Court also ruled that the Legal Aid Agency (LAA) should have accounted for the fact that Susie needed legal aid to enforce the previous agreement where her child had been living in her home more often when it made the decision to refuse her legal aid.

The LAA had decided that Susie was financially ineligible for legal aid, applying guidance from the Ministry of Justice (MoJ) which said a child could only be a member of one household. This meant Susie’s son was not treated as part of her household. As a result, the amount of “disposable” income she was assessed as having was increased and she did not qualify for legal aid.

The judgment means that:

  • The LAA have to remake the decision about whether Susie qualifies for legal aid
  • The MoJ will need to update its guidance to reflect the decision
  • Parents who share caring arrangements for their children are now more likely to qualify for legal aid in all areas of civil law

“We are delighted that the High Court has recognised the errors made by the Legal Aid Agency in refusing to grant Susie legal aid and held that the underlying guidance applied was unlawful,” said Daniel Rourke, Susie’s solicitor in the case, before calling on the MoJ to amend their guidance accordingly. He continued:

“In Susie’s case, due to the unlawful guidance, her abuser stood to benefit from his own breach of their previous agreement. In taking their child to live with him against her wishes, he also took away her ability to challenge him, as she became ineligible for legal aid.

The family proceedings were already a source of great stress and anxiety for Susie, which was only exacerbated by concerns that she would be unable to access legal representation and would have to face her abuser in court alone.

Legal aid is an essential pillar of our justice system and should be accessible to those who need it most. The impact of this judgment is not limited to family law and should lead to other people who share care of a dependent being able to access legal aid more easily.”

Susie said:

“I am so delighted at the outcome of my case. I have lived through such a difficult time over the last few years. I thought that if I left my abusive partner I would be able to enjoy time with my son in a peaceful environment. Instead, my ex-partner managed to coercively control my child into staying with him, so the abuse and control has continued.

I was sure that I would get legal aid to contest what was happening as I had an extremely low income as well. I was absolutely distraught to find I couldn’t because my child was classed as not a dependent or part of my household.

This ruling should now mean that people do have the possibility of obtaining legal aid if they are put in an impossible situation, as I was and therefore also the possibility of getting the support they need to fight for justice for themselves and their child.”

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