On the 1st November 2018 a debate took place in Parliament regarding the future of legal aid for Family Law issues. The Labour Party Shadow Justice Minister, Gloria De Piero, confirmed that, if elected, the Labour Party will restore ‘all funding for early legal advice’.
During the debate elements of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) which overhauled the legal aid system were criticised.
LASPO removed the availability of legal aid for most private family law matters and resulted in the system that we now have which makes it very difficult for people to secure legal aid to cover most family law matters.
There remains confusion about who is and who is not entitled to legal aid for family matters and so the following provides a brief summary of where we currently are.
Legal aid remains available for parents in proceedings when the local authority are involved. This includes when the local authority have made an application to court for a care order or when they have written to the parents indicating that it is their intention to do so. Parents are entitled to legal aid in such circumstances regardless of their financial means.
Legal aid is also still available for applicants applying for a non molestation order, often referred to as an injunction. Such an application would be subject to a means and merits test.
The effect of LASPO was that private family matters such as divorce, finances and child arrangement issues were taken out of scope for legal aid unless the applicant can prove that they have been the victim of domestic abuse or that a relevant child has been the subject of or at risk of child abuse.
Therefore before considering an application for legal aid evidence of domestic abuse or child abuse must be obtained.
The Legal Aid Agency are specific about what constitutes evidence of either domestic or child abuse. Evidence of domestic abuse includes, an arrest, conviction, caution or ongoing criminal investigation for a relevant criminal offence. It could also be an injunction, finding of fact or undertaking given in relevant proceedings. The Legal Aid Agency would also accept letters from a health professional or domestic abuse support organisation.
This is not an exhaustive list however it is clear that the issue of domestic abuse must have at least been reported and actively pursued by the applicant for them to have any chance of being able to provide acceptable evidence for the Legal Aid Agency.
Similarly, child abuse needs to be evidence by way of an arrest, caution or ongoing criminal investigation into a child abuse offence. Evidence can be obtained from a local authority Children’s Social Care department. Again the threshold is high in proving that child abuse has taken place such that an applicant should be able to then apply for legal aid.
A point made in the parliamentary debate was that taking away initial advice in private law matters has resulted in those matters not being dealt with quickly and at an early stage when they are “small and manageable”. A reinstatement of early advice would assist however a more comprehensive look at the impact of LASPO is required to determine what further action is now necessary.
If you require any further information about eligibility for legal aid please contact a member of our Family Law Department on 0845 287 0939 or email us today.
