Legal Aid is money provided by the taxpayer given or loaned to litigants on low incomes to enable the purchase of legal services such as a solicitor or barrister. Your solicitor will provide you with all the information you need, and the appropriate forms so that it can be determined whether or not you qualify (note that the forms changed on 1st November 2012). Solicitors must be members of Resolution (formerly the SFLA) and uphold the Resolution guidelines to qualify for public funding.
Public funding cases do not pay lawyers as generously as private cases [1], and rates are set to fall further, which means that commonly solicitors who are willing to do public funding work are not good or experienced enough to earn ‘real’ lawyers’ fees in private law. Sometimes you can be lucky and find a solicitor or barrister who does legal aid work out of charity and conviction, but they are rare.
Do not fall into the trap of believing that legal aid is a free service; legal aid is paid according to income, and unless your income is very low you will have to pay monthly contributions. If you get legal aid for a divorce, you will have to pay it back out of the divorce settlement before you get anything. It is entirely possible to run up a legal aid bill of £20,000 in a year. Alternatively, if you sell your home, your debt will be taken out of that.
Qualification for legal aid is determined by The Civil Legal Aid (Merits Criteria) Regulations 2013. Whether legal aid is granted to you depends upon the ‘prospects of success’ test: the Legal Aid Agency must determine what your prospects of success are:
· Very good – 80% or better;
· Good – 60% or better;
· Moderate – 50% or better;
· Borderline – it is not possible to say with confidence whether the chances of success are moderate or poor;
· Poor – less than 50%;
· Unclear.
You must also pass a ‘reasonable private paying individual test’ which means that you will get legal aid if a reasonable litigant paying his own costs would be prepared to commence proceedings and risk his own money in the same circumstances.
You may also be awarded legal aid if there is clear public interest with benefit to the public at large or to an identifiable group.
You will not get legal aid if you (and your current partner) have disposable capital of more than £8,000. Below £8,000 but above £3,000 you will have to pay contributions (but not for Legal Help, or Controlled Legal Representation or Family Mediation); contributions will be £1 per £1 over the limit up to the likely cost of the case.
If you have disposable income of £315 per month or less you will not have to pay contributions from income; where you have disposable income of more than £315 per month you will have to make contributions of 30% of your disposable income. Note: that these figures may change.
Legal aid is supplied on ‘advice’ from your solicitor and is dependent on the likelihood of success, that is, its legal ‘merit’. The criterion you must satisfy in order to qualify for legal aid in private law cases is that it will enable you to obtain what you would regard as a significant improvement in the arrangements for your children. In public law it is that you obtain the order sought, or win the appeal.
In private law this means that legal aid can be obstructed by the other side claiming that a case has ‘no merit’. The rules under which legal aid is approved are not rigid and there is room for discretion by the Agency. For a residence application a non-resident parent will need to show evidence that the other is unfit. In turn, the resident parent must demonstrate concerns about the NRP and a probability that contact with him is not in the child’s interest.
If the other party has a legal aid ‘certificate’ their solicitor is obliged to inform you. If you are not sure, contact the Legal Aid Agency to confirm; they are obliged to reply to you and provide a copy of the ‘certificate’ which will detail what it covers and what is the upper limit.
From April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) will ensure that legal aid is not available in family cases except in limited circumstances. The Legal Services Commission which previously dealt with legal aid will be abolished and replaced by the Legal Aid Agency, which is to be an Executive Agency of the Ministry of Justice.
Public funding will be limited to ‘cases which are judged to have sufficient priority to justify the use of public funds’. These cases will include:
· domestic violence and forced marriage proceedings;
· family mediation;
· international child abduction (to recover a child and for an application to obtain an emergency order to prevent international abduction);
· international family maintenance;
· for the victim in private family law cases involving domestic violence and for the protective party in private law children cases involving child abuse;
· public law children cases;
· representation of children in rule 16.2 (and 16.6) private law children cases;
· asylum;
· asylum support where accommodation is claimed;
· claims arising from allegations of abuse and sexual assault;
· community care;
· debt (where the client’s home is at immediate risk), including involuntary bankruptcy and orders for sale of the home;
· housing matters where the home is at immediate risk (excluding squatters), homelessness assistance, housing disrepair cases that pose a serious risk to life or health and anti-social behaviour cases in the County Court;
· immigration detention;
· appeals to the Special Immigration Appeals Commission;
· mental health, including mental capacity issues currently in scope;
· Special Educational Needs cases (currently in scope);
· public law cases (judicial review and other similar remedies) other than representative actions and certain immigration and asylum judicial reviews);
· registration and enforcement of judgments under European Union legislation;
· miscellaneous proceedings: confiscation proceedings, injunctions concerning gang related violence, Independent Safeguarding Authority Appeals (care standards), Legal Help at Inquests, proceedings under the Protection from Harassment Act 1997, and quasi criminal proceedings;
· discrimination cases that are currently within scope (claims relating to a contravention of the Equality Act 2010);
· environmental cases;
· European Union cross border cases;
· Appeals to the Court of Appeal and Supreme Court, and references to the European Court of Justice, (where the area of law to which the appeal relates remains in scope).
In addition, funding will be available in cases where the applicant would have a right to legal aid under the Human Rights Act 1998 or European Union law.
If your legal aid is refused or stopped under LASPO, there is a loophole in Section 10 of the Act which you may be able to exploit. The 1979 case of Airey v Ireland set a precedent for considering lack of access to legal aid a breach of your human rights under Article 6; this precedent can be used under Section 10 which provides for legal aid to be granted in exceptional cases.
Applicants using domestic violence to claim funding will have to pass through a ‘domestic violence gateway’ which will require evidence that the applicant has indeed been a victim. As set out in Section 33 of the Civil Legal Aid (Procedure) Regulations 2012 acceptable evidence will include:
a) a relevant unspent conviction for a domestic violence offence;
b) a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;
c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
d) a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;
e) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996(1) (or given in Scotland or Northern Ireland in place of a protective injunction)—
i. by the individual (“B”) with whom the applicant for civil legal services (“A”) was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and
ii. within the twenty four month period immediately preceding the date of the application for civil legal services,
provided that a cross-undertaking was not given by A;
f) a letter from the person appointed to chair a multi-agency risk assessment conference confirming that—
i. A was referred to the conference as a high risk victim of domestic violence; and
ii. the conference has, within the twenty four month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;
g) a copy of a finding of fact, made in proceedings in the United Kingdom within the twenty four month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;
h) a letter or report from a health professional confirming that the professional—
i. has examined A within the twenty four month period immediately preceding the date of the application for civil legal services;
ii. was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence; and
iii. has no reason to believe that A’s injures or condition were not caused by domestic violence;
i) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);
j) a letter or report from a domestic violence support organisation in the United Kingdom confirming—
i. that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;
ii. the dates on which A was admitted to and, where relevant, left the refuge; and
iii. that A was admitted to the refuge because of allegations by A of domestic violence.
Clearly there are problems with many of these in that they do not actually represent evidence and can all reflect false allegations. This line of reasoning could become circular if your ex partner’s qualification for legal aid on the grounds of DV is then becomes regarded as evidence of DV. The Legal Aid Agency will not cover the cost of medical reports (which can cost £70) or the acquisition of other proof.
In a U-turn in July 2011 the Government extended the LASPO definition of domestic violence to include ‘psychological domestic violence’.
A further limitation is to the number of new legal aid cases even where litigants qualify; for example, in the Southampton area in 2013 this will be limited to 600. One law firm reported in October 2012 it was already turning away 25 cases a week [2]. When applicants cannot afford to prove that they meet the criteria, or cannot find a practitioner even when they do qualify, the Government will be able to claim that the demand for legal aid has fallen.
The Family Law Bar Association, no doubt worried about its members’ incomes, gave this warning [3],
Under the Green Paper proposals, there will be an ‘inequality of arms’ in cases involving domestic violence before the courts – where the alleged victim will be entitled to public funds, whereas the alleged perpetrator will not be so entitled. There is a real risk of a surge in the number of allegations, and possibly cross-allegations, of domestic violence in order to be able to qualify for public funds.
Equally worrying is in private law children cases, if a Judge considers that serious child protection issues arise such that the threshold for a care or supervision order with respect to the child may be satisfied, the Court may direct the appropriate authority to undertake an investigation of the child’s circumstances under section 37 of the Children Act 1989. Whilst this investigation takes place, an interim care order can be made. In effect, this means that parents could have their children removed, and because they would not be entitled to legal aid, they would go unrepresented.
Thus applying for legal aid on the basis of domestic violence or child abuse could be a very risky strategy which could trigger a s.37 investigation and the loss of your child.
The Legal Aid Agency provides funding for family issues at various levels; note that these distinctions will be known to your solicitor and you shouldn’t therefore need to worry about them:
· Legal Help – this covers the initial meeting with a solicitor and follow-up advice, including referral to other services such as mediation. Legal Help can be used for initial consultation on public law matters and for issues such as a change of name. It also covers domestic violence cases.
· Help at Court – this means the provision of legal services at a particular hearing, specifically: instructing an advocate, preparing to provide advocacy and advocacy.
· Family Help (Lower) – covers more substantial advice, assistance and negotiation prior to proceedings and services relating to the issuing of proceedings in order to obtain a consent order.
· Family Help (Higher) – covers proceedings where a consent order is not possible, with a view to securing early resolution. It kicks in once it is apparent that negotiation isn’t going to work. The solicitor must make a separate application once matters reach this stage and this will introduce delay. Family Help (Higher) can only be used in private law proceedings and does not include preparation or representation at a contested final hearing or appeal.
· Family mediation – this covers both assessment and mediation itself.
· Help with family mediation – this covers legal services provided in relation to family mediation and legal services provided in relation to the issuing of proceedings to obtain a consent order following the settlement of the dispute following family mediation.
· Legal Representation – this covers preparation and representation in all other contested family proceedings including final hearings. If you are reading this guidance this is the level of funding you are most likely going to need.
· Other legal services
If your application for legal aid is accepted the other party will be informed, so that they may well contact the Agency in order to block your funding, by making false allegations about your finances, or the uses to which you are putting the funding (to pursue a different case, for example).
Even before the Coalition’s proposal to substantially cut legal aid the Legal Services Commission was intending to reallocate the contracts awarded to solicitors. One concern raised, and acknowledged by the Government [4], was that lawyers would ‘cherry-pick’ cases and avoid more complex or demanding ones.
As a result some cases, such as Children’s Guardian cases, were removed from the scheme. There was also a concern that the ‘quality’ of work would suffer, but since there is no measure of quality this cannot be assessed.
One of the problems with legal aid is that it can suddenly and arbitrarily be stopped, often when you are just about to go for a four day hearing or some other expensive proceeding. Usually this will be because your child’s other parent has managed to throw a spanner into the works and the Legal Aid Agency must investigate.
If your legal aid is stopped your solicitor will stop acting for you until it is restored, beyond writing a letter or two. Your ex will exploit this situation. The Agency must give you a review which you can appeal. This can take eight weeks. In a civil case you can plead that you are having problems obtaining legal aid and ask for the hearings to be adjourned. In the interim you can ask for an Undertaking, for example, that your child will not be removed from the UK until your legal aid certificate is reinstated. This does not mean that your child’s other parent will not take advantage of the delay to abduct your child – it may well be why (s)he planned to stop your funding in the first place.
It is quite likely that the other parent will try to stop you from receiving legal aid; there are various grounds on which you can try to stop theirs:
· (S)he has not met the domestic violence gateway criteria;
· Claim that the application (if the other parent is the applicant) is ‘without merit’, and therefore should not benefit from public money;
· Challenge their public funding on financial grounds – they are earning more than the limit; their house is worth more than the limit, etc.;
· If you think that they are abusing the system and wasting public money ask the Court not to sign the legal aid certificate – not terribly likely to succeed but worth a try.
Taking away the free solicitor will force your ex to do their own dirty work and will level the playing field; one thing on your side is that there is more independent support and advice available to parents trying to restore and maintain contact than there is for parents who want to end it. Bear in mind that if you do manage to stop the legal aid certificate it is likely that a new one will be issued immediately.
Notes:
[1] According to the Law Society legal aid lawyers earned an average of £25,000 in 2009.
[2] Wendy Hewstone, LASPO and the Domestic Violence Gateway, Legal Voice, 15 October 2012, http://legalvoice.org.uk/family/laspo-and-the-domestic-violence-gateway/
[3] Stephen Cobb QC, Family Law Bar Association warns of consequences of civil legal aid cuts, Family Law Week, 16 December 2010, http://www.familylawweek.co.uk/site.aspx?i=ed74300
[4] Ministry of Justice, Final Impact Assessment of Family Legal Aid Funding from 2010, October 2009, https://consult.legalservices.gov.uk/inovem/gf2.ti/f/137410/3070853.1/pdf/-/Annex_A_IA_21.10.09.pdf
