Posted on | February 28, 2013 | 18 Comments
Some have speculated that once LASPO 2012 has been implemented on 1 April and pretty much everything falls out of scope there will be plenty of – erm – scope – for applications under the “exceptional cases” provisions (Legal aid cuts? What legal aid cuts?  Fam Law 1267, Peter Graham Harris, Oxford Centre for Family Law & Policy and Exeter College, University of Oxford). I don’t want to be the bearer of bad news but I fear that the The Man may have other ideas….
“The Lord Chancellor has now published guidance on exceptional cases in out of scope areas post April. These try to put the most restrictive emphasis on what cases might be brought. However what is absolutely not clear is who will be able actually to bring exceptional cases in those areas coming completely out of scope. As there will be no contracts in those areas and no specialist advisers/lawyers, who would actually be able to make a legal aid application in an out of scope area? Answers on a postcard please.”
So. The Guidane. It’s a long old document, so to try and focus on Family I’ll flag a few of the most striking paragraphs (this is emphatically not a systematic approach, I may have missed many more important bits). You can find the full guidance on funding here, and the separate document on exceptional funding here.
“7.11 …For the avoidance of doubt applications for legal aid under section 10 of the Act (exceptional funding) in family proceedings which are listed in Part 1, Schedule 1, but where there is no evidence of domestic abuse or child abuse as required by paragraphs 12 and 13, will be considered by reference to the family criteria contained in Chapter 6.”
The reference to the “family criteria in Chapter 6″ is a reference to the Civil Legal Aid (Merits Criteria) Regulations 2013. From what I can tell it’s like a super charged version of the old means merits criteria. Now its a sort of means-merits-public interest-reasonable privately paying client-has exhausted all ombudspersons and complaints processes-criterion extravaganza. One might ponder whether a case that passed that battery of tests would be exceptional per se… Anyhoo.
8.23 reminds us that the domestic violence / child protection evidential hurdles in Regulations 33 and 34 of the Civil Legal Aid (Procedure) Regulations 2013 do not apply in public law children work, inherent jurisdiction and international abduction generally, non-mols or forced marriage. Jolly good. A notable exception is PSO applications, for example in cases of domestic abduction or non-return. Although it can be seen that in reg 34 one can make concurrent non-mol and PSO applications for the protection of the child and rely on that application in order to pass the evidential test.
For those who have forgotten the types of evidence which will be required to satisfy the LSC that you really are a victim of d.v. see Reg 33 here. The equivalent provision in respect of Child Protection is here (reg 34).
“10.13 Providing guardian services is a core function of CAFCASS. It should not be necessary for the solicitor to be appointed and act as guardian except in purely specialist cases. Given this, solicitors considering accepting appointment as guardian should ascertain the availability of legal aid prior to acceptance of appointment. In any event any certificate issued will not cover work or expenses incurred as guardian (rather than as solicitor).”
So, beware children solicitors. When the levee breaks and the court wants Guardians to come to the rescue, and CAFCASS say they can’t provide any more guardians (remember 2009/10?) – don’t think the LSC will pick up the tab for CAFCASS like they did last time they were overwhelmed.
“10.23 In the case of discharging a care order there are cases where the purpose of the application is to refer the case back to the court for further consideration, in particular because an important element or elements of the care plan, have not been followed through. In those cases the Independent Reporting Officer (IRO) can, as a last resort, refer the matter to CAFCASS Legal or CAFCASS Cymru who can take proceedings against the local authority on behalf of the child. Adults with sufficient interest (or children capable of giving instructions direct) would need to show that the case has been considered by the IRO and the issues have not been resolved before the criteria for legal representation in Regulation 66(2)(a) of the Merits Regulations will be met.”
Hang on, run that past me again. The IRO can kick CAFCASS into taking proceedings against a Local Authority to discharge a care order? Oh yes and paragraph 9 3/4 provides that winged pigs will be eligible for legal aid (subject to a means and merits test). On the other hand showing that the IRO has looked at it and failed to resolve the issues shouldn’t be too difficult to evidence in many cases…
“10.25 In relation to an application with regard to proceedings under the inherent jurisdiction, consideration should be given as to whether this is the most appropriate jurisdiction. Proceedings for example under the 1989 Act, the Family Law Act 1986 or the Child Abduction and Custody Act 1985 may well provide an appropriate remedy rather than an application under the inherent jurisdiction. The use of inherent jurisdiction for ?seek and find? orders may, for example, be unreasonable in the light of the range of orders available under the Children Act 1989 and the Family Law Act 1986 (Merits Regulation 66(2)).”
What this means is that the LSC would prefer it if people didn’t make applications for seek and find type orders under the Inherent Jurisdiction, cos those are eligible for legal aid. They would prefer it if people would make applications under statutory powers for which there is no funding. Hmmm. Incidentally the reference to Reg 66 is odd, because that relates to public law, whereas many (most?) of these orders arise within private law proceedings.
“10.32 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.”
So, just in case you were thinking “Well, respondents to non-mols never got funding anyway, no big deal there” – don’t forget respondents to Forced Marriage Protection Order applications will also not qualify (except rarely judging by the guidance). Thats pretty startling. I’m struggling to imagine that many FMPO applications that are properly made DON’T contain “very serious allegations”, and not only are most of them denied, many of them may well be “plausibly denied” as forced marriage can be difficult to get to grips with and prove.
“10.37 In cases regarding the welfare of children where the claim is not quantifiable in monetary terms cost benefit must be in terms of a significant improvement in the arrangements for that child or children viewed objectively. This will not, however, justify the grant of representation to apply for a residence order which would have the effect of varying residence where the client is unlikely to obtain a residence order and the likely significant improvement would be in arrangements for contact. In those circumstances an application to be represented on an application for contact would be more appropriate. Issues of detail (e.g. frequency and extent of contact including whether staying contact should take place) rather than principle (e.g. no direct contact) are unlikely to justify a grant, in particular as a reasonable private paying client would be unlikely to continue contested proceedings but would rather seek to compromise the issue(s). The fact that the parties cannot agree at the outset does not of itself justify the grant or continuation of public funding.”
So the details of contact arrangements aren’t important enough to qualify. “Details” being basically er… everything…apart from the principle of any contact, which in truth is rarely a genuine issue. So a reasonable paying client would be likely to compromise? How can one square this with the notion that all the clients in question are in effect deemed (for the purposes of funding) as victim of domestic violence, and whose eligibility for funding is base on a need to ensure that those who are vulnerable to pressure or intimidation are protected from it? One might say that a reasonable paying client who has been the victim of dv serious enough to qualify for legal aid in the first place, or who has concerns sufficiently serious to be able to pass the child protection test in reg 34 might be entirely reasonable in wishing to pursue minor “details” regarding contact, such as supervision or overnight stays.
The shorter and slightly more manageable document is the one on exceptional funding.
Of note :
Under “How capable is the applicant of presenting their case?” we find a list of questions, one of which is “Will the case be heard in a tribunal or other venue that is well used to dealing with litigants in person?”. Har de Har. It will be flippin’ well used to it soon enough. The next question is : ”Is there a Mackenzie [sic] friend who could be granted permission to speak on behalf of a party to proceedings?”. Eek. Not quite equivalent. Especially in light of Re H EWCA Civ 1797.
And that, me dears is where my concentration span gave out. The task of reading two sets of guidance, sifting out the dross / non family stuff, cross referencing it to LASPO and 2 sets of regulations (which are not clearly distinguished between when referred to in the guidance itself) was really above and beyond the call of blogging. I suspect that most of us will turn to this guidance in despair when we need to look for a specific reason.