On 1st April 2013 the Legal Aid, Sentencing and Punishing of Offenders Act 2012 (LASPO) will come into effect. This will mean a change to the scope of legal aid for private family cases.
Cases no longer eligible for Legal Aid:
Children and finance applications (including divorce) unless the client can demonstrate:
(a) They have been a victim of or are at risk of domestic violence and they have the prescribed supporting evidence;
or For children applications only:
(b) the child who is or would be the subject of the order is at risk of abuse from another individual against which risk of abuse the order is to provide protection and they have the prescribed supporting evidence
Cases still eligible for Legal Aid:
Unlawful removal of children – securing an order to prevent the unlawful removal of a child from the UK or secure the return of a child unlawfully removed from or within the UK
Children under 18 whether an applicant, respondent, or joined as a party to the proceedings
Protective Injunctions e.g. non-molestation orders, occupation orders, forced marriage protection orders and other protective orders and injunctions
Legal aid for public law children proceedings
All public law children proceedings remain in scope and there are no changes to the availability of legal aid funding. Legal aid to obtain civil remedies to protect clients who are at risk from or subject to domestic violence There are no changes in relation to making an application for legal aid for civil remedies to protect clients that are victims of domestic violence. Therefore legal aid will continue to be available for applications for protective injunctions including: – an injunction – A non-molestation order – A forced marriage protection order – Any other protective order
There will be no additional evidential requirements in relation to receiving legal advice and representation in these matters. The definition of domestic violence in LASPO has been amended to reflect the new cross-government definition. This can be found in the Legal Aid, Sentencing and Punishment of offenders Act 2012 (Amendment of Schedule 1) Order 2013. The new definition is: “domestic violence means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”
Legal aid for children and finance disputes
Disputes relating to children and finance will not be within the scope of legal aid unless the client has been a victim of, or there is a risk of, domestic violence or in children cases, if a child, who would be the subject of the order, has been, or is at risk of abuse from an individual who would be a party to the proceedings. In order to provide legal advice and representation to a client in children or finance cases where there have been, or there is a risk of, domestic violence then the Civil Legal Aid (Procedure) Regulations require that a client MUST obtain one of the following pieces of evidence before they are eligible for civil legal services (set out in Regulation 33)
1. Relevant unspent conviction for a DV offence
2. Relevant police caution for a DV offence given within the twenty four month period immediately preceding the date of the application
3. Evidence of relevant criminal proceedings for a DV offence which have not concluded
4. Relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application
5. Undertaking given in England and Wales provided that there is not a cross-undertaking
6. Letter from chair of a multi-agency risk assessment conference (MARAC) that they were referred as a high risk victim of dv and that the conference took place within the twenty four month period immediately preceding the date of the application
7. 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
8. Letter or report from a health professional they have examined the client within the twenty four month period immediately preceding the date of the application and they had injuries or a condition consistent with those of a victim of domestic violence
9. Letter a social services department 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
10. Admission to a domestic violence support organisation for a period of at least 24 hours within the twenty four month period immediately preceding the date of the application
The client would still be required to meet the usual means and merits criteria.
In order to provide legal advice and representation in children disputes where a child, who would be the subject of the order has been, or is at risk of child abuse from an individual who would be a party to the proceedings then the Civil Legal Aid (Procedure) Regulations require that a client MUST obtain one of the following pieces of evidence before they are eligible for civil legal services (set out in Regulation 34):
1. A relevant unspent conviction for a child abuse offence
2. A relevant police caution for a child abuse offence within the twenty four month period immediately preceding the date of the application
3. Evidence of relevant criminal proceedings for a child abuse offence which have not concluded
4. 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
5. 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, of abuse of a child by an individual other than the applicant for civil legal services
6. A letter from a social services department confirming that, within the twenty four month period immediately preceding the date of the application, the child was assessed as being, or at risk of being, a victim of child abuse by an individual other than the applicant for civil legal services
7. A letter from a social services department confirming that, within the twenty four month period immediately preceding the date of the application, a child protection plan was put in place to protect the child from abuse or a risk of abuse by an individual other than the applicant for civil legal services;
8. An application for an order for a protective injunction made with an application for a prohibited steps order under section 8 of the Children Act 1989(a) which has not, at the date of the application for civil legal services, been decided by the court
Legal Aid for family mediation
Legal aid for family mediation will continue to be available to assist clients to resolve their family dispute. Legal aid will continue to cover the costs of Mediation Information and Assessment Meetings (MIAMs) where at least one party is eligible and will cover the costs of mediation for any eligible client.
Willingness Tests will no longer be remunerated under legal aid following the removal of Funding Code Referrals.
The CLSAPP7 ‘Suitability of Family Mediation’ form will no longer be required under the legal aid scheme. The expectation for clients to consider mediation will be through the President’s Pre Application Protocol and mediators will continue to be required to complete the FM1 form.
Where clients attend mediation, legal advice in connection with mediation will continue to be available under a new level of advice called ‘Help with Family Mediation’ (see below: Legal aid for legal advice in connection with Family Mediation). A new CW5 ‘Help with Family Mediation’ Form will be introduced to provide evidence that a client has participated in mediation and could be entitled to receive legal advice from a contracted family provider in support of this mediation.
Legal aid for legal advice in connection with family mediation
The new form of service called ‘Help with Family Mediation’ has been introduced to provide specialist legal advice in support of clients participating in Family Mediation. A family solicitor can claim £150 for each eligible client and this fee will all cover advice in connection to the mediation regardless of the number of issues present in the dispute. Where agreement is reached through family mediation on finance issues an additional £200 fee is available to the solicitor for legal help provided in relation to the drafting and the issuing of proceedings to obtain a consent order, which is approved by the court. In order to validly claim the fee Finance issue must not proceed further to a new form of civil legal service within 6 months. The £200 fee is only claimable by the solicitor that drafts the consent order. If the other solicitor comments and amends the order then this is covered by the £150 fee.
Legal aid for children involved in family proceedings
Children under the 18 will continue to be eligible for legal aid in all family proceedings as defined in the Act where:
a) They are (or propose to be) the applicant or respondent OR b) They are made a party to the proceedings under Family Procedure Rules (FPR) 16.2 OR c) They are a party to the proceedings and are conducting or propose to conduct the proceedings without a guardian under FPR 16.6
Other areas that remain in scope for family legal aid are:
International child abduction remains in scope.
Legal aid is available for securing an order to prevent the unlawful removal of a child from the UK or to secure the return of a child unlawfully removed from or within the UK. Subsequent issues that may arise will not be in scope.
Written by Ruth Langford
