How Changes in Family Legal Aid Affect You
The legal aid, Sentencing and Punishment of Offenders Act (the Act) came into force on 1st April 2013. It makes significant and wide ranging changes to the legal aid scheme and removes legal aid alltogether for most aspects of family law.
Are there any areas of family law which will not be affected?
There will be no change to legal aid for injunction proceedings such as non-molestation orders (which are aimed at preventing a person from using or threatening violence, intimidating, harassing, pestering etc) or occupation orders (which regulate whether a person can live in the family home or aim to prevent a person entering the surrounding area.)
Legal aid will also continue to be available for child abduction cases and also in cases concerning forced marriages. There will also be continued assistance for family mediation and separating couples are encouraged to attempt to resolve issues in that way.
Which areas of family law will be affected?
Most other private family proceedings such as divorce, the financial matters relating to divorce and matters relating to children (such as where a child should live or what contact a child should have with the other parent) will be affected. Initial publicly funded advice will only be available to those people who not only meet the previously existing legal aid criteria but who have also been the victim of domestic violence or, in private children proceedings, where the child is at risk of abuse by the other party.
Simply put, if the domestic violence or child abuse criteria cannot be met then a person will be unable to obtain legal aid in connection with a wide range of family law matters such as those set out above.
What constitutes domestic violence?
The definition of domestic violence within the Act has recently been amended to read as follows: “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”. Therefore domestic violence is no longer limited to physical violence alone.
How to prove domestic violence or child abuse
In order to qualify for legal aid an applicant must provide evidence of the alleged domestic violence or child abuse by the other party.
The Act sets out a number of ways in which domestic violence or child abuse may be evidenced. The scope of this article is unable to list each of those or address them in detail but they broadly include (but are not limited to) circumstances such as; where the other party has an unspent conviction for a domestic violence or child abuse offence, a police caution within the past 2 years for a domestic violence or child abuse offence, is subject to ongoing criminal proceedings for a domestic violence offence or child abuse offence or has been subject to a non-molestation or other relevant injunction within the previous 2 years.
The Act also enables an applicant for legal aid to prove domestic violence or child abuse where there has not been any police or legal involvement. For instance by providing a letter or report from a health professional setting out certain information, a letter or report by social services in respect of domestic violence or child abuse or by providing a letter or report from a domestic violence support agency confirming that within the past 2 years the application was admitted to a refuge for at least 24 hours.
If you are able to prove that you have suffered from domestic violence you may be eligible for legal aid. If you are unable to do so then you are unlikely to be able to claim legal aid to assist you with your family matters.
Where do the changes leave me?
There is clearly now an issue in that people who are unable to prove that they have suffered domestic violence, or in cases of private children proceedings that the child is at risk of abuse, will be unable to obtain legal aid in connection with their family matters.
Cases involving issues such as divorce, finances and children issues are often very complex and many people will understandably feel that they require assistance in navigating both the procedure and the law. Many people will consider that they would be unable to afford legal advice without the assistance of legal aid. However, there are options which should be explored.
Our family team at Leathes Prior offers free initial consultations with clients at which we can discuss your situation, give some initial advice and talk through your options. We can give an estimate of the likely or possible costs of taking a particular course of action to meet your needs. In certain circumstances we may also be able to agree a fixed fee for work or flexible payment options.
To find out more please contact Simon Willis on 01603 610911, at [email protected] or visit www.leathesprior.co.uk.
