Public Funding (Legal Aid) will change on 1 April 2013. For Family Law this means that people who may have been eligible previously for public funding may no longer be eligible for it.
The type of cases that are covered by public funding is changing. In family this means that for most people divorce proceedings, civil partnership dissolutions and the associated financial issues and children issues will no longer be covered by public funding.
1. What will be covered will include broadly;
A) Care/supervision proceedings and adoption proceedings involving children’s services
B) Decisions under the inherent jurisdiction of the High Court
C) Child abduction from the UK either to prevent it or to secure the return of a child
D) Injunctions following assault, battery or forced imprisonment when the parties were or have been in a family relationship and have been associated by each other as defined by the law
E) Legal Services that arise out of the family relationship where there has been domestic violence between the two adults in that relationship and the person who is applying for legal aid is the victim of domestic violence. This covers both married and un-married people however to be eligible under this section there has to have been domestic violence which means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial, or emotional) between individuals who are associated with each other and it will only cover certain laws which include divorce and finances associated with the termination of marriage, declarations of status regarding children, orders with respect of children in private family law proceedings between parents i.e. contact, residence, prohibited steps and also the termination of civil partnership and the associated financial proceedings and application for parental orders under human fertilisation and embryology act 2008 together with other acts. Transfer of tenancies on divorce or separation of co-habitants and Section 14 Trust of Land 1996 claims if the property was occupied by A or B as their home. (However it does not include Schedule 1 Children Act 1989)/
F) Proceedings where a child may be at risk from another individual including removal of father’s Parental Responsibility, Special Guardianship Orders, Disclosure of Child’s Whereabouts and Orders for the return of a child. If the child is at risk of abuse the definition of abuse is physical or mental abuse including sexual abuse and abuse in the form of violence, neglect maltreatment or exploitation.
G) Mediation in relation to family disputes between associated persons as defined by the law
H) Legal aid to children while the applicant or respondent are made party to the proceedings under Rule 16.2 of the FPR which is usually when parents are arguing and a guardian is involved.
I) Forced marriage
J) EU and International Agreements concerning Children
K) EU and International Agreements concerning Maintenance and enforcement of EU decisions or enforcements of maintenance decisions made abroad.
L) Exceptional cases where failure to provide legal services would be a breach of the individuals convention rights (within the meaning of the Human Rights Act 1998) or a breach of any rights of the individual to the provision of legal services that are enforceable EU rights.
2.
a) To be eligible for legal aid under E above, the Applicant (“A”) will have to provide proof of eligibility from a third party so not the applicant themselves. For “A” to get public funding in a family dispute against “B” then “A” must show that;
1. B has a relevant unspent conviction for a domestic violence offence
2. Relevant police caution for domestic violence that is less than 2 years old
3. Current criminal proceedings for domestic violence that have not concluded yet
4. Current injunction or injunction that was granted less than 2 years previously
5. Current undertaking that is less than 2 years old (provided that a cross undertaking was not given by A).
6. The chair of the MARAC confirms in writing that A is at high risk of domestic violence and a plan has been put in place to protect A from B which is less than 24 months old.
7. Finding of fact made by the court of domestic violence that is less than 2 years old
8. A letter by a Doctor, Nurse or Midwife confirming that they have seen A less than 2 years ago and are satisfied that A had injuries or a condition consistent with being the victim of domestic violence and they have no reason to believe that they were not caused by domestic violence.
9. A letter from social services confirming that in the last 2 years A has been at risk from being the victim of domestic violence or a copy of an assessment less than 2 years old covering the same thing
10. Letter from a domestic violence support organisation confirming that A has in the last 2 years been in a refuge for at least 24 hours because of domestic violence by B.
b) For people who want public funding for family matters that come within F above they will have to have to bring with them to the first meeting evidence that the child is at risk of abuse from an individual “B” other than the Applicant “A” and the order is to provide that child with protection. Such as:
1) unspent convictions for child abuse
2) cautions within the last 24 months for child abuse
3) criminal proceedings for child abuse that are not concluded
4) injunctions that are less than 24 months old
5) findings of fact which are less than 24 months old
6) social services confirming by letter or report that in the last 24 months that the child was assessed as being the victim of abuse or need to be protected from abuse from B
7) an application for an injunction made within an application for prohibited steps order against B which has not yet been decided by the court.
3. All Parties who are wishing to obtain public funding other than parents in care proceedings or adoption will have to provide evidence of their income and the LSC will also have to decide whether they will grant them public funding on the merits of their case as well.
4. There will now be a four stage test in family proceedings:
1. Is your case covered by public funding at all?
2. If yes, is it a case where you have to establish domestic violence or that a child is at risk in which case do you have that evidence?
3. Do you fit financially within the criteria for public funding?
4. Does your case have merit?