There are significant changes to family work set out in both the bill and the accompanying consultation response.
What’s in the bill?
See part 2 of this series for how the bill works. The detail of what will remain in scope is set out in Part 1 of Schedule 1:
- Proceedings for the care, supervision and protection of children:
- s25 Children Act 1989 (secure accommodation orders);
- Parts 4 and 5 Children Act 1989;
- approval by a court of arrangements to assist children to live abroad under para 19, Schedule 2, Children Act 1989;
- parenting orders and child safety orders under Crime and Disorder Act 1998;
- contact under s26 Adoption and Children Act 1989;
- applications under s36 Adoption and Children Act 1989;
- placement orders, recovery orders and adoption orders under Adoption and Children Act 1989;
- orders under s84 Adoption and Children Act 1989 relating to adoption abroad;
- services in relation to an order made as an alternative to, or heard in related proceedings with, one of the above;
- plus there is a power to add further types of case by regulation
- a prohibited steps order or specific issue order;
- an order for disclosure of the whereabouts of the child;
- a requirement for surrendering of a passport of a child
- in relation to home rights, occupation orders and non-molestation orders under Part 4 Family Law Act 1996;
- for an injunction following assault, battery or false imprisonment;
- under the inherent jurisdiction of the High Court to protect vulnerable adults
All other cases are out of scope.
Part 2 of the bill deals with litigation funding, and the key provision for family practitioners is the creation of a legal services order. Clauses 45 to 50 of the bill amend the Matrimonial Causes Act and Civil Partnership Act allowing the court to order that one party to ancillary relief proceedings pay an amount (lump sum or instalments) to the other party to enable them to fund their legal costs. The court must be satisfied that the receiving party would not otherwise be able to pay the costs, and the order may be for all the costs or a contribution towards them, and may be for all or part of the proceedings. Legal aid is not available to fund an application for such an order.
What’s in the consultation response?
Annexes A and B contain more detailed discussion of the reasoning behind decisions whether or not to remove particular proceedings from scope, including the limitations on availability of legal aid to protect from domestic violence or child abuse (see 5 and 6 above).
Family cases are excluded, for the time being, from the mandatory telephone gateway, although the government intends to expand the existing (optional) Community Legal Advice telephone service and, subject to a review, expand the mandatory gateway to other areas of law potentially including those areas of family law remaining in scope.
The eligibility changes (see our post) will apply to family law as to all areas. The LSC will also restrict the circumstances in which QCs can be used in family cases, in line with the proposals in the consultation.
What about fees?
All fees will be cut by 10% from the start of new family contracts in February 2012. The fees schedule sets out the changes to individual fees, but the broad structure of the payment regimes remains unchanged. The revised fees start at page 51 of the schedule, with the new FAS fees from page 63. Enhancements in hourly rates cases will be capped at 50% in the County Court and 100% in the High Court and above, with the proviso that there will be no pro rata reduction below that – so a case that currently attracts 30% enhancement now will get 30% in future, but a case that currently gets 60% will in future get 50%.
Expert fees will be codified and reduced by 10%, with provision for exceptional cases, and there will be further work on moving to a system of fixed and graduated fees for experts in the longer term. The full table of expert rates can be found at page 72 of the fees schedule.
2 responses to “Legal aid reform (4) – family law”
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