Death of family legal aid ‘greatly exaggerated’
Legal aid has been severely reduced, but it hasn’t disappeared altogether. Lawyers still have a duty to advise clients if their cases may be in scope, so need to know the key questions to ask, says Elspeth Thomson
Introduction
There is a widespread public perception (in some cases shared by advisers and community organisations) that legal aid is no longer available for anything other than criminal cases. Legal Action’s ‘Use it or lose it’ series will show that legal aid remains widely available in civil cases for many who need it, both to obtain advice and to take and defend legal proceedings.
To paraphrase Mark Twain’s famous quip, reports of the death of legal aid have been greatly exaggerated
The government’s legal aid cuts brought in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 on 1 April 2013 have left many lawyers and their clients with a sense that legal aid is no more for family cases.
While legal aid has been severely cut, it is still available in certain situations and solicitors still have a duty to tell clients if legal aid is available, so lawyers need to know what is still there for clients.
Not only is it important that fee-earners are fully up to speed with what is available in their own areas and those that their colleagues cover, but support staff and receptionists need to be alert, to avoid turning away clients who could benefit from legal aid.
When the government slashed legal aid they still had to stay compliant with the European human rights legislation so in certain circumstances legal aid is available. These are the questions to ask to spot where legal aid can help
•Is the case still in scope?
•Can your client get through the domestic abuse gateway?
•Can your client get through the child abuse gateway?
•Could your client exceptionally qualify for legal aid?
•Can your client mediate?
•Can you advise where mediation is happening?
Is the case still in scope?
As set out in LASPO 2012 Sch 1, legal aid, both legal help (controlled work) and certificated legal aid, is available for public children law, domestic abuse and child abduction. If a case is in scope, it’s ‘as you were’, pre-LASPO, with means and merits tests applicable.
Public law (para 1)
Where a local authority is involved in a child’s life because of child protection concerns, legal aid is available for parents (if court proceedings are in process or anticipated, this may not be means-tested) and other relatives.
This covers where a local authority has made an application to the court for a care, supervision, placement, adoption or secure accommodation order, as well as pre-proceedings child protection issues and contact with children in care.
Child abduction/unlawful removal of children (para 10)
Legal aid is available to advise someone seeking to prevent the unlawful removal of a related child from the UK, or to secure the return of a related child who has been unlawfully removed from the UK. A related child is someone under 18 for whom the client is a parent or has parental responsibility. This covers advice on:
•a prohibited steps order or specific issue order (Children Act 1989 s8);
•an order for disclosure of the child’s whereabouts (Family Law Act 1986 s33)
•an order the child’s return (Family Law Act 1986 s34)
•passport orders (Family Law Act 1986 s37)
Legal aid is also available to advise someone who is seeking to secure the return of a related child who has been unlawfully removed to a place in the UK. This covers advice, as above (save s37). This has proved a tricky area in practice as there can be a fine line between retention following contact and an unlawful removal and the Legal Aid Agency (LAA) have not provided any helpful guidance.
Domestic abuse (para 11)
Legal aid is available for people who need advice about getting court protection when they have experienced domestic abuse.
This covers advice provided in relation to home rights, occupation orders and non-molestation orders under part 4 of the Family Law Act 1996, and in relation to an injunction following assault, battery or false imprisonment, and the inherent jurisdiction of the High Court to protect an adult, arising out of a family relationship.
Legal aid is available to perpetrators as well as victims who need advice in relation to these orders. The usual merits test will apply.
Children who are parties to family proceedings (para 15)
Legal aid is available where a child is (or proposes to be) a party to proceedings. Typically, this arises where a child is joined as a party under Family Procedure Rules Part 16. This often leads to a situation in private children law where both parents are litigants in person and the child is the only represented party.
Forced marriage (para 16)
Legal aid is available to advise in relation to forced marriage protection orders under part 4A of the Family Law Act 1996. It is available for both applicants and respondents (subject to merits test)
EU and international agreements concerning children (para 17)
Legal aid is still available for European Convention on Child Custody and Hague Convention cases.
EU and international agreements concerning maintenance (para 18)
And finally in scope, on the rare occasions it may crop up for legally aided clients, advice is available in relation to applications for the recognition or enforcement in England and Wales of a maintenance order under one of the listed EU and international agreements.
Does the domestic abuse gateway apply?
Legal aid is available for victims of domestic violence and family matters; this has become known as the domestic abuse gateway. Once through the gateway, legal aid is available for clients in family cases as before, but evidence must be provided to get through. The rules are set out at LASPO 2012 Sch 1 para 12 and the evidence requirements are set out in the Civil Legal Aid (Procedure) Regulations 2012 No 3098 (reg 33) as amended by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 No 131. The amendments were brought in, following a promised review, as a response to concerns that the evidence requirements were too tightly drawn.
Domestic abuse is defined by the government as ‘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.’
If your client can get written proof as set out below, they will qualify for legal aid to cover the whole range of family law issues.
Criminal convictions for a domestic violence offence
If your client’s ex-partner has a criminal conviction (including overseas convictions) for a domestic violence offence against them, this will count as evidence. It will not count if the conviction is ‘spent’, nor if the offence was committed against another person.
Police caution for a domestic violence offence
If your client’s ex-partner has been given a police caution for a domestic violence offence against them in the UK within the last 24 months, this will count as evidence for legal aid
On-going criminal proceedings
If your client’s ex-partner has been charged with a domestic violence offence against them within the UK which has not yet concluded, then that will count as evidence for legal aid.
Protective injunctions
Evidence of
•Non-molestation order
•Occupation order
•Forced marriage protection order
•Restraining order
Or the equivalents from other parts of the UK within the last 24 months will get your client through the gateway.
An undertaking given in place of a protective injunction
Where your client’s ex-partner has given an undertaking to a court in the UK instead of an order being made against them in the last 24 months then this can be used as evidence to get legal aid. Your client must not have given the court a similar cross-undertaking not to harass or threaten their partner.
Relevant police bail for a domestic violence offence
This was added in 2014. Evidence that the perpetrator is on police bail for a relevant domestic violence offence will serve as gateway evidence.
‘If a family case is still in scope, it’s “as you were”, pre LASPO, with means and merits tests applicable.’
Being subject to a multi-agency risk assessment conference plan
A multi-agency risk assessment conference (MARAC) is a group of local agencies (such as the police, doctors and social services) who come together to make plans to protect and help high-risk victims of domestic violence. If a MARAC has made a plan to protect your client from your ex-partner in the last 24 months then a letter from a member of the MARAC can be used as evidence for legal aid.
Finding of fact of domestic violence by a court
If there has been a finding of fact in a UK court of domestic violence against your client by their ex-partner in the last 24 months then this can be used as evidence. It is wise to ensure any findings are clearly recorded on the face of an order to assist clients in the future.
A letter or report from a health professional
Your client needs a letter or report from a health professional (doctor, nurse, midwife or psychologist) who has access to her medical records that they or another health professional have examined them in person within the last 24 months and were satisfied, following that examination, that she had injuries or a condition consistent with those of a victim of domestic violence. A ‘condition’ can include mental or psychological conditions, such as depression, as well as physical conditions.
Social services letter or assessment
Your client will need a letter from a social services department confirming that, within the last 24 months, they were assessed as being, or at risk of being, a victim of domestic violence by an ex-partner. The letter must be on department letterhead or an email from a social services address. Alternatively, you can rely on the actual assessment but must clearly indicate which parts you are relying on.
Domestic violence support organisation confirming admission to a refuge due to domestic violence
Your client needs a letter or report from a domestic violence support organisation in the UK confirming that she was, within the last 24 months, admitted to a refuge because of allegations she made of domestic violence. The letter/report must set out the dates of admission.
Domestic violence support organisation confirming insufficient accommodation prevented admission to a refuge
This was added in 2014 to address the problem where lack of space had prevented admission to a refuge. Here the client needs a letter or report from a domestic violence support organisation in the UK confirming that she was, within the last 24 months, refused admission to a refuge on account of there being insufficient accommodation available in the refuge.
Health professional referral for support
Another 2014 addition to address situations where people were accessing domestic violence services without going into a refuge. The government was not prepared to go as far as to say that anyone who accessed support passed the gateway, no doubt fearing a rush of fabricated self-referrals. Here the client needs a letter or report from:
(i) the person to whom the referral was made;
(ii) the health professional who made the referral; or
(iii) a health professional who has access to the client’s medical record,
confirming that, within the last 24 months, the client was referred by a health professional to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
Relevant domestic violence protection notice
A further 2014 addition allows evidence of a relevant domestic violence protection notice issued under Crime and Security Act 2010 s24, or a relevant domestic violence protection order made under s28 of that Act, within the last 24 months.
Bind over
The final 2014 addition allows evidence of a relevant court order binding over the ex-partner in connection with a domestic violence offence, which is in force or which was granted within the last 24 months
Getting gateway evidence
The LAA has provided guidance and template letters. The client must have the gateway evidence before legal services are provided. Legal help is not available to assist a client in getting the evidence, nor is there any funding to pay any fees which may be charged by health professionals.
The guidance sets out what evidence is acceptable. It is important to follow this to the letter as the LAA is applying a very strict interpretation, leading to many claims for costs being disallowed or applications refused where delegated functions have been used. Those providing the letters need to stick to the script given in the templates as deviation leads to rejection. This can mean asking for several redrafts of evidence before it is satisfactory which is time-consuming for the professionals involved and unpaid work for the legal aid provider.
Particularly problematic is the requirement that evidence must be produced each time a new level of funding is sought. This is not only where a client moves from legal help to a certificate but also moving from Family Help (Higher) to Legal Representation, which is necessary when a case is listed for a final hearing. The evidence may be out of date by then, leaving the client high and dry. In a muddled written response to a parliamentary question on 6 January 2015, the legal aid minister Shailesh Vara confused the date of the abuse with the date of the evidence, showing just how complicated it can be to get the evidence right.
‘Legal aid is available to perpetrators as well as victims who need advice in relation to occupation and non-molestation orders.’
On 12 December 2014, Rights of Women’s (RoW) judicial review of the domestic violence gateway evidence requirements was heard in the High Court. RoW argued that the evidence required by reg 33 is too narrowly drawn and excludes many women intended by parliament to be eligible for legal aid. The judgment is expected in January 2015.
Does the child abuse gateway apply?
Legal aid is available for an adult seeking to protect a child, where the child, who is or would be the subject of the order, is at risk of abuse from another adult. This has become known as the child abuse gateway. Once through the gateway, legal aid is available for defined children proceedings and not the whole range of family law. The rules are set out at LASPO 2012 Sch 1 para 13, and the evidence requirements are set out in the Civil Legal Aid (Procedure) Regulations 2012 (reg 34) as amended by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014.
This gateway leads to legal aid for: removal of father’s parental responsibility (Children Act 1989 s4(2A))
•termination of appointment of guardian (Children Act 1989 s6(7))
•child arrangements, prohibited steps and specific issue orders (Children Act 1989 s8(1))
•special guardianship orders (Children Act 1989 Part 2)
•disclosure of child’s whereabouts (Family Law Act 1986 s33)
•return of child (Family Law Act 1986 s34) Guidance to the child abuse gateway can also be found on
www.gov.uk.
Criminal convictions for a child abuse offence
If the person your client is seeking to protect the child from has a relevant unspent criminal conviction for a child abuse offence, this will count as evidence for legal aid.
The offence does not need to be in respect of the child for whom protection is sought; it can be in respect of any child. Overseas offences count.
Police caution for a child abuse offence
If the person your client is seeking to protect the child from has been given a police caution for a relevant child abuse offence within the last 24 months this will count as gateway evidence.
The caution does not need to be in respect of the child for whom protection is sought.
Evidence of ongoing criminal proceedings for a child abuse offence
If the person you are seeking to protect the child from has been charged with a relevant child abuse offence, and the proceedings have not concluded, then that will count as evidence for legal aid.
The offence does not need to be in respect of the child for whom protection is sought.
This criterion is not satisfied unless the perpetrator has been formally charged; an on-going police investigation with the perpetrator on police bail would not be sufficient. Overseas proceedings count.
Evidence of a protective injunction
Your client needs evidence of a relevant protective injunction in force or made within the last 24 months to protect the child, who is the subject of the case, from the respondent.
This includes where an ex-parte order is granted. Even if the respondent disputes the allegations at subsequent hearing in relation to the protective injunction and the order falls, the client is still eligible for legal aid as they were granted a protective injunction.
Where you are making an application for a protective order on behalf of your client then, to satisfy this requirement, the order must be obtained before you are able to assist your client with children issues, this may be on the same day.
A finding of fact of child abuse by a court
If there has been a finding of fact, in a UK court, within the last 24 months, of child abuse against a child by the person your client is seeking to protect the child from then this can be used as evidence. It is sensible to ensure that the court records any findings in writing in accordance with Practice Direction 12J, so evidence is available to satisfy this criterion in future.
Police bail for a child abuse offence
A 2014 addition: evidence must show that the adult your client is seeking to protect the child from is on bail for a relevant child abuse offence.
If the perpetrator is not subsequently charged for the relevant offence then evidence of police bail will no longer satisfy evidence requirements and an alternative piece of evidence must be provided.
‘Legal help is not available to assist a client in getting the evidence of domestic violence, nor is there funding to pay fees which may be charged by health professionals.’
Social services letter
Your client will need a letter stating the child concerned has been assessed by social services within the last 24 months as being, or at risk of being, a victim of child abuse by the other adult. The letter must be on letterhead or from a social services email address. A copy of the relevant assessment can also be used if the wording is precise enough, and you have to identify the part of the assessment you are relying on.
Social services child protection plan
Your client can get through the gateway by proving that within the last 24 months a child protection plan was put in place to protect the child from abuse or a risk of abuse by the other adult. Proof can be a letter from social services or a copy of the plan. Again you need to identify which part of the plan satisfies the test.
Evidence of application for a protective injunction with a prohibited steps order
If your client has applied for a protective injunction and a prohibited steps order at the same time, and they have yet to be determined, then this will count as evidence.
You need to provide a copy of the application for a protective injunction and a copy of the application for a prohibited steps order.
Both applications must be made and must be seeking to protect the child from the other party (ie not your client). Both applications must remain undetermined by the court on the date that the legal aid application is made.
Exceptional cases (LASPO s10)
The government introduced the exceptional case regime to avoid falling foul of the Human Rights Act. In practice, it has proved extremely difficult to get funding through this route. Statistics published in August 2014 reveal that of the 125 applications received for family legal aid between 1 April 2014 to 30 June 2014, only four were granted, with 24 awaiting decisions and the others refused or rejected.
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.
The exceptional case funding application form is also very lengthy and complex; it has been said that the form is so detailed and complicated that if an unassisted person did complete one successfully and persuasively, it would demonstrate that the person had the skills and abilities to represent themselves without a lawyer.
On 15 December 2014, the Court of Appeal delivered judgment in the case of Gudanaviciene ([2014] EWCA Civ 1622) which concerned the application of exceptional case funding in immigration law. The Court of Appeal concluded that the LAA guidance was incompatible with article 6 of the European Convention on Human Rights and sends a clear signal to caseworkers and the director that the refusal of legal aid will amount to a breach only in rare and extreme cases.
It remains to be seen whether there will be an increase in grants of exceptional funding in family cases in future.
‘It seems that the public has heard the message that family legal aid is gone and do not know legal aid is available for mediation.’
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Sir James Munby, President of the Family Division, has floated possibility of what has become known as ‘a shadow legal aid scheme’, with funding ordered by the courts
The family judges and in particular Sir James Munby, the President of the Family Division, have stepped in to the debate through judgments. In the matter of D (a child) (No 2) [2015] EWFC 2, he commented ‘the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane’.
In Q v Q [2014] EWFC 31, the President floated the possibility of what has come to be known as a ‘shadow legal aid scheme,’ ordering representation to be paid for by the courts service via Matrimonial and Family Proceedings Act 1984 s31G(6). HHJ Bellamy (sitting as a High Court Judge) has since made an order that the Court Service fund an unrepresented father who would otherwise have to cross-examine a child who has made allegations of abuse at a fact-finding hearing (K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1), and set out what he considered to be the principles to be applied.
Mediation and help with mediation
Legally-aided mediation is still available, as it ever was. However, the uptake of legally-aided mediation fell dramatically following the implementation of LASPO, dropping from 3,282 matter starts in the quarter before April 2013 to 2,707 the following quarter to a low of 1,751 in the first quarter of 2014. Even with the compulsory introduction of mediation information and assessment meetings in April 2014, matter starts still remain significantly below pre-LASPO levels.
It seems that the general public have heard the message that family legal aid is gone and do not know legal aid is available for mediation.
In addition, solicitors can also provide advice through the Help with Mediation level of service to support the mediation and draft consent orders.
Conclusion
Family legal aid is not yet dead and buried, but practitioners need to be tenacious and alert to identify where it is available to help clients in need, and prepared to spend unpaid time assisting clients to jump through all the necessary hoops.