A victim of domestic violence, who is surviving on universal credit but has been denied legal aid in a battle to hold on to her home, is challenging strict regulations that could force her to cross-examine her former partner in court. The woman, known as Claire (not her real name), has launched a judicial review of the refusal to provide funding made by the Legal Aid Agency (LAA). Without legal aid, she cannot pay for a lawyer and will have no option but to represent herself. Her challenge will be heard in the high court on Tuesday.
LAA regulations take into account any so-called trapped capital in the home she jointly owns with her ex-partner when assessing her eligibility to legal aid.
“The legal aid agency is saying that I have to sell my house in order to fight to be in my house, or to get my fair share of it,” Claire said. “It’s obvious that I can’t do that. The alternative is to represent myself. The idea of seeing my abuser again in court is utterly terrifying.”
The Public Law Project (PLP), which is representing her, says assessment is unrealistic because it does not consider whether she is able to access that money.
“Acting as a litigant in person in those proceedings could involve having to cross-examine her ex-partner – of whom she is completely terrified – while at the same time arguing complex points of law,” Katy Watts, a PLP solicitor, said.
“It is unrealistic to think that anyone in that situation could represent themselves effectively. Our client receives universal credit and cares for two small children. There is no way she could pay for legal representation on her own. There is a very serious access to justice problem here.
On previous occasions Claire had to go to court on her own to defend a non-molestation order. “He was there with his barrister. His barrister was pushing for a ‘zonal order’, which would have allowed my ex-partner back into the house, but I had no idea what it meant at first. They were using legal jargon I didn’t understand.
“That was the first time I had seen him or heard his voice in four weeks. He was really angry. It was awful. I was petrified. I had nobody to help me. When I heard his voice I was physically sick in the courtroom. There was such an inequality of power. He had his barrister and I didn’t have anybody.”
Olive Craig, a senior legal officer at Rights of Women said: “We frequently speak to women who cannot afford to pay for representation but who are considered to be financially ineligible for legal aid because the test is so strict. You should not have to sell your home and make yourself and your children homeless to be able to access justice.”
Jenny Beck, a director at the family firm Beck Fitzgerald who is acting pro bono for the woman, said: “Sadly, Claire’s case is not unusual. She is a victim of serious abuse who needed to protect herself and her children. Claire has already had to go to court alone to protect herself. She was terrified.
“Legal aid is denied to about one in five of the women I see because of the way the scheme works. Even those living below subsistence level are denied proper access to justice. We are facing a real justice crisis here. There’s little sense in protective laws if normal people cannot access them.”
A Legal Aid Agency spokesperson said: “We cannot comment on ongoing proceedings.”
Reproduced from the Guardian. https://www.theguardian.com/law/2020/jun/09/domestic-violence-legal-aid-judicial-review-cross-examine-partner-court
