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:
High Court inherent jurisdiction
Services to an parent or person with parental responsibility seeking to prevent the unlawful removal of a child from the UK and applying for:
- 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
Services in relation to domestic violence proceedings arising out of a family relationship
- 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
Private law family cases otherwise excluded where an adult client has been abused or is at risk of being abused by another individual arising out of a family relationship. Abuse is defined in the bill as both physical and mental abuse, including sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation. The consultation response (Annex A, paras 42 and 53) says that only where there has been an order or conviction in the last 12 months, ongoing criminal proceedings, a referral to a Multi-Agency Risk Assessment Conference or a finding of fact of domestic abuse will legal aid be granted. Those restrictions are not in the bill, although it does empower the Lord Chancellor to make regulations providing for “when matters arise out of a family relationship”. Legal aid is only available to the victim, not the perpetrator. A family relationship has the same meaning as in Part 4 of the Family Law Act 1996. Conveyancing to give effect to an order is also allowed.
Cases where an adult client is seeking to protect a child at risk of abuse (defined the same as above) by proceedings under s4(2A), 6(7), 8(1) or Part 2 Children Act 1989, or s33(1) or 34(1) Family Law Act 1986. Legal aid is not available to the person alleged to be the source of the risk. Although this is not in the bill, the consultation response states that legal aid would only be available where there are ongoing criminal proceedings for child abuse, there is or has been a child protection plan in place within the last 12 months, or there has been a finding of fact that child abuse has occurred.
Mediation in family disputes, and advice in connection with mediation in family disputes (the Part 2 exclusion of trust law matters is dis-applied, so mediation on those matters is also permitted). Conveyancing to give effect to an agreement is also allowed.
Advice and representation of a child (under 18) where the child is the applicant, respondent or a party under rule 16.2 or 16.6 Family Proceedings Rules
Forced marriage protection orders
EU and international agreements concerning children and maintenance
Judicial review, provided there is a benefit to the client or a member of their family
- 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.