ScopePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:inherent jurisdiction of High CourtPrivate family law case:scopePrivate family law casePrivate family law case:scope:unlawful removal of childrenPrivate family law case:scope:no need for evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:domestic abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:domestic abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:respondentsPrivate family law case:scope:no need for evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:private law matters arising out of family relationshipPrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic violence:definitionAbuse:definitionPrivate family law case:scope:protection of children and family mattersPrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:protection of children and family mattersPrivate family law case:scope:no need for evidence of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence of domestic abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law caseDomestic abuse:evidence ofPrivate family law case:scope:evidence that child is at risk of abusePrivate family law case:scope:evidence of abusePrivate family law case:scopePrivate family law casePrivate family law case:scopePrivate family law case:controlled workPrivate family law caseControlled work:family casesPrivate family law case:scopePrivate family law case:controlled workPrivate family law caseControlled work:family cases
6.5Scope is determined by LASPO. Part 1 of Schedule 1 to the Act lists the services which may generally be provided in the family category.
In scope with no need for evidence of abuse
6.6The following types of case are within scope without the need to produce evidence of domestic abuse or evidence that a child is at risk of abuse.
Inherent jurisdiction of the High Court
6.7Inherent jurisdiction of the High Court in relation to children and vulnerable adults (Sch 1 para 9) applications for wardship are covered by legal aid.
Unlawful removal of children
6.8You can prevent removal from the jurisdiction but can only secure return of a child if unlawfully removed within the jurisdiction (Sch 1 para 10). Unlawfully means removed by someone who does not have authority to do so, either because they do not have parental responsibility or because of a court order. The following are in scope:
•prohibited steps orders;
•specific issue orders;
•orders for disclosure of a child’s whereabouts under Family Law Act 1986 s33, under s34 for a child’s return, and a requirement under s37 to surrender the passport of, issued to, or containing the particulars of a child.
Domestic abuse
6.9Advice and representation in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996, injunctions following assault, battery or false imprisonment, and inherent jurisdiction of the High Court to protect an adult (Sch 1 para 11) are all in scope.
6.10It is really important to note that this paragraph is not qualified – it is not necessary for the client to show or provide evidence of any previous violence to be eligible for ‘civil legal services’. Civil legal services include all forms of legal aid, so advice under Legal Help can be provided in relation to the issues concerning domestic violence itself, and say a warning letter drafted, prior to, or instead of, applying to court for an injunction.
Respondents in domestic abuse cases
6.11Legal aid may still be available to respondents in some cases but it depends on the facts of the case. See below for an extract from the Lord Chancellor’s Guidance.
Respondents
10.31 The prospects of success criteria (Merits Regulation 67(2)(a)) and the proportionality test (Merits Regulation 67(2)(b)) are unlikely to be satisfied by a respondent to non molestation proceedings or a forced marriage protection order only, unless there are very serious allegations which are plausibly denied wholly or substantially. An exception is where there is any question of inability to defend, for example because of mental incapacity or age, in which case a grant is likely to be justified. When considering the proportionality test, the impact on the client of the order sought will be taken into account, including any impact on contact or other related family proceedings.
10.32 In cases where the allegations are less serious or are admitted to a significant extent the main issue may well be whether the respondent should give an undertaking to the court and what form that undertaking should take. Legal help will usually be more appropriate in such cases (Regulation 20 of the Merits Regulations).
Other areas within scope without evidence of abuse
6.12These are:
•mediation (Sch 1 para 14);
•representation of children who are themselves parties to family proceedings (Sch 1 para 15);
•forced marriage cases (Sch 1 para 16);
•EU and international agreements concerning children (Sch 1 para 17);
•EU and international agreements concerning maintenance (Sch 1 para 18).
•Forced marriage protection orders
•Female genital mutilation protection orders
In scope with evidence of abuse
6.13Other than the above, private family law cases are only in scope where the applicant for legal aid can show that they are a victim of domestic abuse, or that the services are required to protect a child from an adult other than the applicant for legal aid. In either case, evidence will be required.
Other private law matters arising out a family relationship (Sch 1 para 12)
6.14Legal aid (both advice and representation) for matters arising out of a family relationship is only available to people who can show in very specific ways (set out in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended
1Civil Legal Aid (Procedure) (Amendment) Regulations 2014 and Civil Legal Aid (Procedure) (Amendment) Regulations 2016.)) that they are the victims of domestic abuse. Examples include:
•financial matters and arrangements for children (eg maintenance or other financial arrangement orders, ancillary relief, transfer of tenancy);
•divorce, dissolution, or nullity;
•child arrangement orders;
•declaration of parentage;
•parental responsibility orders;
•special guardianship orders;
•prohibited steps orders;
•specific issue orders;
•orders under Family Law Act 1986 ss33 and 34 for disclosure of the child’s whereabouts or return unless in relation to the unlawful removal of a child).
6.15LASPO has the following wide definition of ‘domestic violence’ and ‘abuse’:
‘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;…
2Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 r4(1).‘abuse’ 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.
Protection of children and family matters (Sch 1 para 13)
6.16Legal aid advice and representation is available in specified private family law matters:
•child arrangement orders prohibited steps orders and specific issue orders;
•removal of a father’s parental responsibility under Children Act 1989 s4(2A);
•special guardianship orders;
•termination of appointment of a guardian under Children Act 1989 s6(7);
•orders under Adoption and Children Act 2002 s51A (post adoption contact); and
•orders under Family Law Act 1986 s33 and s34 for disclosure of the child’s whereabouts or return – unless in relation to the unlawful removal of a child), where a child is at risk from an adult who is not the person receiving legal aid.
6.17Legal aid is only available to people who can show in very specific ways (set out in regulation 34 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended
3By Civil Legal Aid (Procedure) (Amendment) Regulations 2014 and Civil Legal Aid (Procedure) (Amendment) Regulations 2016.) that the child is at risk of abuse from an adult who is not the applicant for legal aid.
Evidence of domestic abuse
6.18Acceptable evidence of abuse is listed in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012 and has been amended over the years
4First by Civil Legal Aid (Procedure) (Amendment) Regulations 2014, then by Civil Legal Aid (Procedure) (Amendment) Regulations 2016. to permit some additional forms of evidence, and to extend the currency of documentary evidence of domestic abuse to sixty months from 25 April 2016, following the Rights of Women judical review.
5R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin). Press reports in February 2017 suggested the Government was contemplating removing the time-limit altogether but no firm proposals had been made as we went to press. See www.legalaidhandbook.com for updates. The Director has released detailed guidance on the operation of the evidence requirements, available at
www.gov.uk/guidance/funding-and-costs-assessment-for-civil-and-crime-matters This specifies in detail what is required for each piece of evidence. It also confirms that full and satisfactory evidence must be provided
before work starts, otherwise legal aid will be refused or the Legal Help will be nil assessed (para 2.4 of the Guidance). Where you are applying for a certificate, you should submit certified copies of the evidence and retain the originals on file (para 1.8).
6.19Where work on a case covers work automatically in scope (eg an application for a domestic violence injunction) and work only in scope on production of evidence (eg a prohibited steps order) you can only work on the first element until the evidence is obtained (whether through the initial in-scope work or separately) (para 1.5 of the Guidance).
6.20The guidance includes the wording of the relevant regulation as well as a checklist setting out exactly what they look for in each document. As the LAA will reject any document which does not appear to match the wording of the regulation exactly, using this guide can save time and prevent delay.
6.21Any of the following are acceptable. However, note that Legal Help is not available to assist the client to obtain the evidence or to pay the costs, eg GP’s report fees, of obtaining it. The LAA has issued some standard letters which clients can ask the relevant agency to complete. It is advisable that they are used wherever possible as the regulations are tightly drafted and unless the wording precisely covers all elements of the regulation, the LAA cannot accept it. The letters can be downloaded from
www.gov.uk/government/collections/legal-aid-cases-of-domestic-violence-and-child-abuse-letters-for-professionals.
6.22You cannot grant Legal Help, nor will the client be eligible for a representation certificate for private family law services listed at LASPO Sch 1 para 12 without one of the following – see also children at risk below:
(a)an unspent conviction for a domestic violence offence;
(b)a police caution for a domestic violence offence given within the sixty month period immediately preceding the date of the application for civil legal services;
(c)evidence of relevant criminal proceedings against the opponent for a domestic violence offence which have not concluded;
(d)a protective injunction against the opponent which is in force or which was granted within the sixty month period immediately preceding the date of the application for civil legal services;
(e)an undertaking given by an other party in a family relationship within the sixty month period immediately preceding the date of the application provided that a cross-undertaking was not given by your client;
(ea)evidence that the other party is on police bail for a domestic violence offence
(eb)a spent conviction for a domestic violence offence where the other party was convicted within the sixty month period immediately preceding the date of the application for civil legal services
(f)a letter from a member of a multi-agency risk assessment conference (MARAC) confirming that the client was referred to the MARAC as a victim of domestic violence; and that the MARAC has, within the sixty month period immediately preceding the date of the application put in place a plan to protect the client from a risk of harm by an other party in a family relationship;
(g)a copy of a finding of fact, made in within the sixty month period immediately preceding the date of the application, that there has been domestic violence by the other party giving rise to a risk of harm to the client;
(h)a letter or report from a health professional confirming that a professional has examined the client within the sixty month period immediately preceding the date of the application and is satisfied that the client had injuries or a condition consistent with those of a victim of domestic violence; and has no reason to believe that the client’s injures or condition were not caused by domestic violence;
(i)a letter from a social services department confirming that, within the sixty month period and immediately preceding the date of the application, the client was assessed as being, or at risk of being, a victim of domestic violence by the other party;
(j)a letter or report from a domestic violence support organisation in the United Kingdom confirming
(i)that the client was, within the sixty month period immediately preceding the date of the application, admitted to a refuge;
(ii)the dates on which the client was admitted to and, where relevant, left the refuge; and
(iii)that the client was admitted to the refuge because of allegations of domestic violence.
(k)a letter confirming the client was refused admission to a refuge because of lack of accommodation, within the sixty month period immediately preceding the date of the application;
(l)a referral letter or report from a health professional to a domestic violence support organisation within the sixty month period and immediately preceding the date of the application, or from the domestic violence support organisation confirming that they received such a referral;
(m)a Domestic Violence Protection Notice or Order within the sixty month period and immediately preceding the date of the application;
(n)evidence of a bind over in connection with a domestic violence offence within the sixty month period and immediately preceding the date of the application
6.23In addition to the above, following the Rights of Women judicial review,
6R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin). the regulations were amended
7Civil Legal Aid (Procedure) (Amendment) Regulations 2016. from 25 April 2016 to include:
(o)evidence which relates to abuse in relation to financial matters, where that evidence dates within the sixty month period immediately preceding the date of, or is dated on the date of, the application for civil legal services.
•copies of both the victims and the perpetrator’s bank statements and or cancelled cheques;
•relevant letters from banks;
•credit card accounts;
•loan documents and statements;
•business financial statements;
•employee benefit records including insurance, stock options and bonuses;
•letter from a domestic violence support organisation;
•money order receipts;
•documentation with regard to any public assistance received;
•emails;
•text messages;
•diary kept by the victim;
•letters from employers or from an education or training institute.
Evidence that a child is at risk of abuse
6.25In relation to the legal services listed in LASPO Sch 1 para 13, acceptable evidence is listed in regulation 34(2) of the Civil Legal Aid (Procedure) Regulations 2012 as amended. Any of the following are acceptable:
(a)an unspent conviction for a child abuse offence;
(aa)a spent conviction for a child abuse offence when convicted within the twenty four month period immediately preceding the date of the application;
(b)a police caution for a child abuse offence given within the twenty four month period immediately preceding the date of the application;
(c)evidence of relevant ongoing criminal proceedings for a child abuse offence;
(d)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;
(e)a copy of a finding of fact made within the twenty four month period immediately preceding the date of the application, of abuse of a child by the other party;
(ea)evidence that the other party is on police bail for a child abuse offence;
(f)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 the other party;
(g)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 the other party;
(h)an application for an injunction made with an application for a prohibited steps order against the other party.
For a full list of the work that can be done in the family category, see appendix C.
Controlled work and licensed work
6.26Controlled work is granted by the solicitor/caseworker according to rules under the Standard Contract 2013. It is called ‘controlled’ because the LAA controls the number of matter starts which are allowed each year. The kinds of controlled work that are relevant to family practitioners are Legal Help and Family Help (Lower). Help at Court is not available in family work.
6.27You need a representation certificate, sometimes known as a legal aid certificate, to represent a client in legal proceedings. This is called licensed work, as the firm has a general licence to do such work, and numbers of matter starts are not limited. Certificates may be granted by the LAA, or, in urgent circumstances, granted as a delegated function by the organisation.