A decision to deny a single mother legal aid to enforce a child custody agreement against her abusive ex-partner was unlawful, the high court has ruled.
When Susie (not her real name) separated from her ex-partner, who would physically and verbally abuse her when he had been drinking, they initially shared custody of their son equally. But when he breached their agreement, limiting her access, the Legal Aid Agency (LAA) refused her application for funds because it decided that as her son was not then living with her, he was not her dependant.
However, Mr Justice Andrew Baker ruled on Wednesday that means-testing rules passed by parliament allowed for a dependant to be treated as part of more than one household. As a result, the guidance from the Ministry of Justice (MoJ) that a child could be a member of only one household was wrong and unlawful.
He also ruled that, when making its decision, the LAA should have taken into account the fact that Susie needed legal aid to enforce the previous agreement, under which her son had been living in her home more often.
The judgment means that the LAA must reassess whether Susie qualifies for legal aid and the MoJ has to update its guidance to reflect the decision.
Susie said: “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 dependant, 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.”
Because Susie was deemed not to have any dependants, the amount of disposable income she was assessed to have increased, preventing her from qualifying for legal aid.
Daniel Rourke, a solicitor with the Public Law Project, who represented Susie, said: “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.”
Richard Miller, the head of justice at the Law Society of England and Wales, which provided Susie with an indemnity against adverse costs orders from the judicial review, said: “We are pleased that today’s ruling will mean more parents in similar situations can be properly represented and that this applies not only to family cases but other areas of civil legal aid.”
A MoJ spokesperson said: “We have noted this ruling and are carefully considering our next steps.”
