Guest piece by Eilis Barry, CEO of FLAC: Abolition of fees for legal aid in domestic violence cases – a good day for access to justice

Eilis Barry is Chief Executive of FLAC (Free Legal Advice Centres).

The Chief Justice, Mr. Justice Frank Clarke stated recently that there was little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. The Minister for Justice and Equality, Mr Charles Flanagan TD in his decision to abolish fees for legal aid domestic violence cases in the District Court, has taken a very practical and welcome step, which will improve the access of people experiencing domestic violence to civil legal aid and necessary court protections.

As of the 1 January 2018 applicants for legal aid who are bringing domestic violence proceedings in the District Court will no longer have to pay the minimum financial contribution. This step is timely in advance of the implementation of the Domestic Violence Bill 2017, which will extend the range of people who may seek domestic violence remedies. It is also timely as frontline organisations dealing with people experiencing domestic violence regularly report an increase in the numbers seeking assistance once the Christmas period is over.

It may be counter intuitive but the State scheme of civil legal aid is not free. While the Legal Aid Board prioritises cases involving domestic violence, an applicant for legal aid has to pay a minimum of €150 fee before proceedings can be issued. This fee can be a significant barrier to legal representation and is unnecessarily onerous on anyone who has satisfied the very strict and narrow means test. The fee exceeds what someone under 25 receives in their weekly-reduced rates of social welfare. Migrants experiencing domestic violence who do not satisfy the habitual residence condition and are deemed ineligible for social welfare may find it particularly difficult to pay the legal aid contribution. People experiencing domestic violence may also experience financial abuse and may not be in a position to access their notional income.

A system of waiver exists which allows the Legal Aid Board to disregard the requirement for a financial contribution where failure to do so would cause undue hardship. However public awareness of the waiver system is low.  There is no automatic entitlement for people experiencing domestic violence to a waiver, despite a sympathetic approach being taken by the Legal Aid Board. The majority of applicants for legal aid in connection with domestic violence remedies pay the minimum contribution.  Organisations working with people experiencing domestic abuse have reported making increased requests to St Vincent De Paul to pay this minimum fee.

FLAC has been campaigning for some time for its abolition and warmly welcomes Minister Flanagan’s decision. Women’s Aid, Safe Ireland, the NWCI and the Law Society‘s Family and Child Law Committee have also called for its abolition. Several domestic and international human rights bodies have emphasised the need for legal aid schemes to be accessible and raised concerns regarding the cost of legal aid services provided to people who are affected by domestic violence in Ireland. In 2017 the UN Committee on the elimination of all forms of discrimination against Women recommended that the State end the requirement for victims of domestic violence to make financial contributions for civil legal aid, to ensure access to justice to all women without sufficient means. Nils Muiznieks, the Commissioner for Human Rights in 2016 called on the State to improve access for victims of violence to legal aid.

The Chair of the Legal Aid Board Philip O’ Leary in welcoming the Minister’s announcement, stated that where issues of domestic violence arise there should be no barriers to seeking a Domestic Violence Order from the District Court.

The Minister is to be commended for making this decision. It is also heartening to hear that the Department does not object in principle to recommendations made by the Legal Aid Board regarding financial eligibility thresholds for legal aid and other legislative amendments. It is to be hoped that this is the beginning of long awaited improvements to the State scheme of civil legal aid.



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