The Bar Council of England and Wales has recommended that legal aid be made available in all family court cases involving allegations of domestic abuse. The recommendation is one of several put forward in a recent policy paper, which highlights the vital role that the family justice system plays in tackling violence against women and girls (VAWG).

‘This a great proposal and goes a long way [towards] providing support where it is most needed and simplifying access to funding and legal representation for the most vulnerable,’ says Hilka Hollmann, an officer of the IBA Family Law Committee.

The additional recommendations outlined in the paper include the accurate measurement and recording of VAWG, the removal of means testing for alleged victims and survivors of domestic abuse and better coordination between the family and criminal justice systems.

Hollmann – who’s a partner at Dawson Cornwell in London – says that while domestic violence takes many forms, including against men and in same-sex relationships, wider access to legal aid can improve both case management and protection for vulnerable parties within the court process. At the same time, she highlights that domestic abuse cases are often complex, and that efficiency is critical. In some cases, she explains, litigation itself ‘can be an extension of the abuse experienced in the relationship, and without legal representation, there is no buffer and the perpetrator can have direct access to an ex-partner they abused or continue to abuse.’

The Bar Council argues that unless legal aid is made universally available in domestic abuse cases and is no longer subject to means testing and evidential hurdles, meaningful improvements in access and outcomes will remain difficult to achieve.

These concerns are reflected in the UK Domestic Abuse Commissioner’s report, Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism, published in October. The report found domestic abuse to be prevalent across the family court system, presenting significant risk to both victims and children. Based on a detailed review of 300 child arrangements cases at three courts, the report revealed evidence of domestic abuse in 87 per cent of case files. This was most commonly identified through the presence of safeguarding letters – found in 81 per cent of cases – as well as C100 forms, used when applying for an order, and C1A forms, which are utilised for providing supplemental information when making allegations of harm and domestic violence.

Despite the prevalence of this information in case files, the Commissioner’s report notes that ‘none of the three main sources was comprehensive or could be relied upon as the sole source of evidence of the presence of domestic abuse.’ Opportunities to identify domestic abuse and place it within a broader pattern of behaviour were further constrained by the limited space available on the forms and their restricted structure. All of this points to a system that holds information but lacks the structure and capacity for it to be safely interpreted and acted upon.

The Bar Council’s recommendations sit within a justice system that has faced prolonged financial and structural strain. In 2013, the Legal Aid, Sentencing and Punishment of Offenders Act fundamentally changed access to justice by reducing the financial eligibility criteria – making it harder for individuals to access legal advice and representation. According to the Law Society of England and Wales, the number of family cases where neither party has a legal representative tripled – from 13 per cent to 39 per cent – in the years from 2013 to 2023.

Hollmann says that while a victim of domestic abuse currently has access to an advocate for the purposes of cross-examination, there’s no real pre-care or after-care, and no legal representation to act as a buffer during court hearings. A person who can’t afford legal representation but isn’t eligible for legal aid will ‘still have to face their abuser in court, even where there are special measures in place, and interact with them or their solicitors outside the court arena, for case progression.’ She highlights the impact on court staff and judges, where the former are required to act as a go-between in cases where there can’t be any direct contact, while the latter must conduct hearings involving litigants in person who may have additional vulnerabilities.

Similar impacts are seen internationally. Rich Harris, an officer of the IBA Family Law Committee, adds that cuts to aid have created a crisis in access to legal services across the board in the US, and not only in domestic abuse cases.

Hollmann underscores the need to ensure that ‘practitioners are sufficiently remunerated,’ to attract new talent, retain experienced lawyers and maintain the pool of solicitors and barristers undertaking legal aid work.

Harris, who’s Managing Partner of The Harris Law Firm in Denver, believes the answer could lie in better funding for the courts, as ‘it would allow more judges to process more cases more quickly. Delayed justice, in my experience, is nearly as bad and dangerous as preventing access to justice,’ he says.

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