When can I get legal aid?

News Release

13 Feb 2015

Resolution member Nadia Salam of GT Stewart looks at the post LASPO landscape and where legal aid is still available.

LASPO has now been in force for almost two years, but there is still confusion about the family law matters that can attract legal aid. It is important that everyone has an understanding of this, as solicitors have a duty to tell clients whether they will be eligible or not.

Legal aid is still available in the following situations:

Public child law – there has been no change to funding for public child law matters and they remain in scope. This is where a local authority is involved in a child’s life because of child protection concerns. Non-means-tested funding is available for care, supervision and emergency protection orders. Means- and merits-tested funding is still available for other public child law matters such as revocation of a care order, or applying for a contact order whilst the child is subject to a care order.

Protective injunctions – there is still funding in place for non-molestation orders, occupation orders, and forced marriage protection orders for the applicant. It is also important to note funding is still available for respondents if they are defending the injunction. There is no change to the position pre-LASPO and they could, very unusually, get funding as they can now, if they pass the relevant means and merits tests.

Unlawful removal of children – ie for 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 who are a party to proceedings – ie for children under 18, whether an applicant, respondent or joined as a party to the proceedings.

Family mediation – legal aid continues to be available for mediation in family disputes. There is also funding available to provide legal advice to someone going through mediation.

Other family problems - where the client has suffered domestic abuse or is at risk of violence or abuse, or the child who is or would be the subject of the order is at risk of abuse from another individual against whom the order is to provide protection and there is prescribed supporting evidence (also known as gateway evidence).

Domestic abuse and the child protection gateway

Disputes relating to children and finance are only within scope of legal aid if 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 has been, or there is a risk of, domestic violence, then the Civil Legal Aid (Procedure) Regulations 2012 require that a client must obtain evidence of one of the following before they are eligible for funding (set out in Regulation 33):

· partner’s unspent conviction for a domestic violence offence;

· partner’s police caution for a domestic violence offence;

· ongoing criminal proceedings;

· a protective injunction;

· an undertaking;

· police bail;

· MARAC involvement;

· a finding of fact;

· a letter from a health professional;

· a Social Services letter;

· a domestic violence support organisation admission to a refuge letter;

· a refusal of admission to a refuge due to lack of accommodation;

· a health professional referral to a domestic violence support service;

· a domestic violence protection notice (DVPN) and domestic violence protection orders (DVPO); or

· bind overs.

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, the Civil Legal Aid (Procedure) Regulations require that a client must obtain evidence of one of the following before they are eligible for funding (set out in Regulation 34):

· an unspent conviction for a child abuse offence;

· a police caution for a child abuse offence;

· ongoing criminal proceedings for a child abuse offence which has not concluded;

· a protective injunction;

· a finding of fact;

· police bail;

· a Social Services letter;

· a Social Services child protection plan; or

· an application for a protective injunction with an application for a prohibited steps order.

(Many of the above evidential requirements have time limits, ie they must be in force or have been granted within the last 24 months. Please refer to the Regulations for the details.)

There were additional provisions made in April 2014 for the evidence required under the domestic abuse and child protection gateway, which is positive. However, even still it can be difficult at times to obtain the necessary evidence. There is no funding to help a client obtain the evidence and funding will not be in place until the evidence has been obtained. The usual means and merit criteria still apply.

There are also template letters available on the Legal Aid Agency website which clients can give to professionals to request the information. There are also template letters that professionals can use to provide the information. It is advisable where possible to encourage professionals to use the templates to ensure the evidence has the prescribed wording.

Exceptional funding

For those clients who are not able to get legal aid as they do not meet any of the above criteria, there is still the possibility of obtaining exceptional funding. The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold; only 21 applications for exceptional funding were successful in family matters between April 2013 and September 2014 - despite over 1,000 applications being made in the same period.

Case law

There have recently been some interesting decisions made in cases regarding legal aid and the eligibility for funding in cases. The most publicised case of Q v Q [2014] EWFC 31 (heard alongside two other unrelated cases) was before the President of the Family Division. The President concluded that where the Legal Aid Agency refused to do so, in certain cases Her Majesty’s Court and Tribunals Service (HMCTS) should fund legal representation and the costs of an expert. In the actual case there was no order made against the HMCTS to provide funding, however the judgment is significant as it concludes that there are certain circumstances in which the court can properly direct that certain activities be funded by HMCTS where legal aid is not available. This is to be used in rare cases. For those who have not yet read this case, it is a must if you practise in private child law.

The recent decision in Re K and H (Children: Unrepresented father: Cross-examination of child) [2015] EWFC 1 is also interesting to note, where it was decided that the court should appoint a legally qualified advocate to cross-examine the daughter on the father’s behalf. Again, the circumstances were rare and there was consideration of eligibility of legal aid; in this case whilst the father was not financially eligible, he was not able to afford representation.

Conclusion

Despite the cuts to legal aid which have changed the way family advice can be accessed, there are still a number of matters that attract it. It is so important that we make sure everyone knows when legal aid is available to ensure clients can access the help they need. There are also ongoing challenges to different aspects of the legal aid cuts, as well as ongoing campaigning which Resolution continues to be a part of.

If you do not have a contract to provide legal aid services yourself, you can find a Resolution member who does via the Resolution website. There is also further information on the Resolution website about legal aid, with links to the Legal Aid Agency website.