Attention all Counsellors!
Access to justice in financial claims between parties and obtaining Legal Aid in Domestic Violence Cases
Many of you will be aware that since April 2013 Legal Aid has not been generally available in family matters for applications under the Children Act 1989 or for the determination of financial and property claims in separations and divorces (including maintenance) under the Matrimonial Causes Act 1973.
Since April 2013 the position has been that parties must attend mediation information meetings where they have a choice whether or not to mediate their differences. If one of the parties elects not to mediate or the mediation breaks down without agreement then the parties have to refer to the court without help from Legal Aid. Here at Leonard Gray we run a very busy Family Law Department and operate a Family Mediation Service which can publically fund through Legal Aid, mediation sessions. However, where mediation is unsuitable or breaks down, the parties, unless they can access funds for solicitors’ fees, become “Litigants in Person”. This means that they have to present their own case in the Family Court before the Judges.
Personally, I would not like to try and undertake a skilled medical operation as a Doctor because I do not have the training. The same applies with legal work where Solicitors have spent years training so as to understand the complex law relating to divorce/separation, capital provision, maintenance, pension sharing and the legal issues which surround them.
One of the very few exceptions to the non-availability of Legal Aid is for the conduct of children cases and property/finance cases is if there is domestic violence.
It is clear that the Government want parties to consider alternative means to court to resolve the differences in their relationship in favour of alternative methods generally UNLESS there is domestic violence.
Prior to 18 September 2012, when the Home Office published a new definition of domestic abuse, it was always considered quite difficult to make an application to the court for an injunction to stop domestic violence unless actual violence and injuries had been sustained. The new definition specifically includes “Emotional control and coercion, the isolation of the victim from family and friends, acts such as preventing partners from leaving the house or having access to a phone, and psychological cruelty”. The definition has also been widened to include 16 and 17 year olds for the first time.
The importance and value of this new definition cannot be overstated. It encourages victims to speak up and professionals to recognise non-physical domestic abuse.
If the “victim” can obtain some evidence of domestic violence under the above definition such as a Doctor’s report, Social Services’ report or evidence from the Police, then an application to the court for injunction can be made. Furthermore, the parties may be excluded from having to attend a Mediation Information Meeting before issuing proceedings under the Children Act or for financial and property matters to be resolved. In this instance, if their income and savings qualify, Legal Aid is still available for legal representation through the Family Court.
The above are very important points to bear in mind where there is a genuine need for legal assistance and deserving parties cannot afford the cost of legal representation at court. It is not uncommon these days for the legal costs of even a relatively simple application to the court for financial and property matters to be resolved to be in the region of £7,000-£30,000 each (or more if the case is complex). £60,000 potentially, out of the family reserves and resources is a huge amount.
It must be borne in mind that Legal Aid is not free for legal work. If property or finances are preserved or awarded, the normal Legal Aid rules apply that the “statutory charge” will operate to repay the cost of the legal fees or for a Legal Charge (often like a second mortgage) to be placed against recovered or preserved property which is needed for the assisted party to live in often with children.
If the parties resolve their differences in mediation and are Legally Aided, the Legal Aid statutory charge will not apply currently.
From a Counsellor’s point of view it is important to have the knowledge of the above because you may be presented by an extremely distressed client who feels that he or she cannot access legal help and services against the other party who may be in a strong financial position or more financially astute.
If in doubt please e-mail me at firstname.lastname@example.org for brief informed help. I will be pleased to guide you.
Colin Smith, Solicitor, Partner at Leonard Gray Solicitors and Mediation; former National Chair Family Mediators Association.