A single mother and domestic abuse survivor is taking the Ministry of Justice to court this week after being refused legal aid because she was deemed to have no dependents, even though she had applied for the funding to enforce a child custody arrangement.
Susie (not her real name) and her abusive ex-partner initially shared custody of their son equally, but when he breached their agreement, limiting her access, she applied for legal aid to assert her rights.
However, in a decision her lawyers say has wider ramifications for domestic abuse survivors, the Legal Aid Agency (LAA) decided that as her son was not presently living with her, he was not her dependent. The result was that she was not deemed to have costs relating to him which meant the LAA found that her disposable income was too high to qualify for legal aid.
Susie, who is training to be a healthcare professional, said: “I’m trying to get him back from somebody I know is alcohol dependent, so already as a mother, I am super stressed. To then find that actually, I have to tick a box to say I have no child … It’s almost kind of slapping you in the face again.
“It’s just awful because he’s not my dependent according to the LAA, but he is. I want him to be with me because I don’t want him to be in that situation.”
Susie said she lived in a “constant state of anxiety” with her partner, who would abuse her verbally and physically when he had been drinking, and that she still suffered from night terrors. She said she “escaped a relationship which was incredibly abusive; only to be further abused by a legal aid system which vilifies those who are trying to make a home for their children and to rescue them from further abuse”. Without legal aid, she would have to face her abuser in the family court alone.
In a judicial review beginning on Tuesday at the high court in central London, her lawyers will argue that the LAA should have considered that Susie’s child was not living with her because of her abuser’s actions, and that legal aid was needed to challenge that.
Susie’s solicitor, Daniel Rourke from the Public Law Project, said: “If the Ministry of Justice and the LAA are right in the really rigid way that they’re applying the means test, then it means that an abuser who takes away a child can simultaneously make it harder to challenge their actions. We say that would be a really surprising outcome of the means test because it would undermine access to family law help for domestic abuse survivors.”
Because Susie was considered to have no dependants, the deduction for housing costs from her monthly income when the LAA did its eligibility assessment was limited to £545 even though her actual costs were far higher. The Public Law project says the financial limits for legal aid have not been increased since they were set in 2012, with many having been in place for decades.
Susie said: “The system needs to be updated so that the abuser is not allowed to retain power even after the relationship has ended.”
Lubna Shuja, president of the Law Society, which has provided Susie with an indemnity against adverse costs orders from the judicial review, said: “It seems unlikely that parliament could have intended such an outcome and we hope either the LAA itself or the court will overturn the decision, so Susie and others in similar situations can be properly represented in the family court.”
A Ministry of Justice spokesperson said it would be inappropriate to comment as the case is ongoing.
