FAMILY LAW – LEGAL AID CUTS
Introduction
On 1 April 2013, The Legal Aid, Sentencing and Punishment of Offenders Act 2013 comes into force and
brings with it drastic changes to the Legal Aid system.
The Government hopes to save in excess of £2 billion.
The Results
Legal Aid will only be available in very limited circumstances unless there is evidence of domestic abuse of
child abuse.
Who will be affected?
Family cases where domestic abuse is not an issue will no longer be funded by Legal Aid. Legal Aid will
only be available to victims of domestic abuse. The perpetrator of domestic abuse will not qualify for Legal
Aid.
The changes will not affect those cases where a Legal Aid certificate has been obtained before 1 April
2013.
Clients needing a Forced Marriage Protection Order, Non-Molestation Order, Occupation/Exclusion Order
or transfer of tenancy or Protection from Harassment Order if there is a family relationship will still qualify
for Legal Aid.
Private Family Law cases involving Contact, Residence and Prohibited Steps Orders will not be affected,
provided that that the client can produce evidence of domestic abuse or evidence of child abuse.
Legal Aid will still be available to clients needing divorce or financial relief in divorce proceedings if they can
prove domestic abuse or child abuse.
Means and Merits Testing
All applicants for Legal Aid will still be required to satisfy a stringent merits test and funding will only be
awarded if they qualify on their means.
Definition of Domestic Abuse
The definition of "domestic violence" has been extended. It 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".
"Abuse" (as referred to in the above definition) means "any incident or repeated incidents of threatening
behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional and including
acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been
intimate partners or family members, regardless of gender or sexuality".
What constitutes evidence of "Domestic Abuse"?
Evidence must be "acceptable" as defined in Regulation 33 of The Civil Legal Aid (Procedure) Regulations
2012. It will include the following:
(a)
the other party has an unspent conviction for a domestic violence offence against the Applicant;
(b)
the other party has a relevant Police caution for a domestic violence offence in the last two years;
(c)
the other party is involved in criminal proceedings for a domestic violence offence which are
ongoing;
(d)
a relative protective injunction has been made against the other party which is in force or which was
granted in the last two years (this can include a Non-Molestation Order, Occupation Order,
Restraining Order or Forced Marriage Protection Order);
(e)
the above Orders have been replaced by an undertaking which is still in place or has been in place
in the last two years;
(f)
a letter from a person appointed to chair a Multi Agency Risk Assessment Conference (MARAC)
confirming that the client was referred to MARAC as a high risk victim of domestic violence and
MARAC has, within the last two years, put in place a plan to protect the client;
(g)
a copy of a Finding of Fact made against the other party in proceedings in the United Kingdom in
the last two years (showing that there has been domestic violence by the other party against the
client);
(h)
a letter or report from a health professional confirming that he or she has examined the client within
the last two years and was satisfied that the client had injuries consistent with those of a victim of
domestic violence and has no reason to believe that the client's injuries or condition were not
caused by domestic violence (GP, Midwife, Health Visitor, Nurse, Consultant and any other health
professional can provide this evidence);
(i)
a letter from Social Services confirming that the client was assessed as being at risk of domestic
violence from the other party within the last two years and/or a copy of the Local Authority's Risk
Assessment;
(j)
a letter from a Domestic Violence Support Organisation in the United Kingdom confirming that the
client was admitted to a Refuge within the last two years, confirming the dates of arrival and
departure and confirming that the client resided at the Refuge because of allegations of domestic
violence against the other party.
Evidence that children are at risk of child abuse
1.
Any of the pieces of evidence referred to at (a)-(j) inclusive above relating to offences against a
child.
2.
A letter from Social Services confirming that a Child Protection Plan was put in place to protect the
client's child from abuse or any risk of abuse by the other party within the last two years.
When will the evidence be required?
The same evidence of domestic abuse or child abuse is required for all levels of funding/Legal Aid, whether
the client simply requires an initial appointment for advice only, has a Court hearing already listed or wishes
to issue Court proceedings themselves.
Summary
Domestic abuse cases will continue to be funded by Legal Aid as before 1 April 2013. If the client requires
a Forced Marriage Protection Order, Non-Molestation Order, Occupation Order, Exclusion Order, Transfer
of Tenancy or Protection from Harassment Order, then Legal Aid will be available.
In Private Law Children Act cases, evidence of domestic abuse or child abuse will be required.
Where a client requires a Prohibited Steps Order to protect against the risk of removal of their children,
issuing a Non-Molestation Injunction application at the same time will constitute acceptable evidence.
It is ESSENTIAL for the client and any support services assisting or advising the client to gather as much
evidence as possible before the initial appointment with a Solicitor.
It is ESSENTIAL that victims of domestic abuse report the other party's behaviour to the Police on each
and every occasion.
Domestic Violence Support Workers and Advice Agencies will be instrumental in helping clients to gather
acceptable evidence to prove domestic abuse or child abuse and in encouraging clients to make complaints
to the Police.
Victims of domestic abuse will still be able to rely on the Court for protection for themselves and their
children and will be able to apply for Legal Aid. The other party to the proceedings will not get Legal Aid.
If a client cannot provide acceptable evidence of domestic abuse or child abuse, Legal Aid will not be
available. In those circumstances, other options may be available, such as Fixed Fee Schemes.
The following cases will continue to be funded by Legal Aid:

Public Law proceedings (Care proceedings, Supervision Orders)

Private Law Children Act cases (Contact, Residence, Prohibited Steps) ONLY where there is evidence
of domestic abuse or child abuse

Child Abduction cases (International)

Representation of children in Private Law Children Act cases

Domestic Violence injunctions (Non-Molestation, Occupation, Exclusion, Transfer of Tenancy,
Protection from Harassment)

Forced Marriage Protection Orders
Thanks for the article to
Ayres Waters Solicitors
5 St Petersgate
Stockport
SK1 1EB Tel: 0161 480 5229
KathrynW@ayreswaters.co.uk
Mariat@ayreswaters.co.uk