Are You Entitled to Legal Aid and What is Mediation ?

by Emma Macdonald 16th October 2014

Legal Aid
In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence.

Following LASPO however, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation.

Legal Aid is available for the following cases:-
– Family law cases involving domestic violence or when the child is at risk of abuse from partner;
– Forced marriage;
– Child abduction;
– Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
– Mental Health and Asylum cases;
– Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse.

The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).
“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

As legal aid availability is now extremely limited, what are the alternatives available?

– Family loans;
– Credit cards;
– Commercial loans/Litigation loans (Litigation financing is defined as the process in which a third-party company provides advanced capital to cover litigation costs in exchange for a return on any judgment or settlement);
– Paying privately for advice and assistance on an “as and when” basis, which is one step away from being a litigant in person;
– Legal Services Order in divorce/financial proceedings

LASPO introduced further Court powers, which allows the Court to grant a “Legal Services Order”, which is an Order for one party to make a payment to fund the other spouse’s legal costs. However, before the Court would make such an Order the Court must be satisfied that the person ordered to pay has sufficient money to pay and that you could not obtain any other form of financial support, i.e. by way of loan

What is Mediation ? – MIAMs

Regardless of funding, before an application can be made to the Court, it is now a requirement to attend a mediation information and assessment meeting (MIAM). The idea being to see if mediation can resolve your issues without the need to go to Court at all.

The Court wants to know whether mediation or any other non-court dispute resolution has been attempted before an application is issued. This means that before you go to Court you must at least have received information about mediation and how it works.

You will be required to provide evidence from the mediator that a MIAM has taken place, unless one of the exemption rules applies.

You are exempt from attending a MIAM in the following situations:-

– If there is evidence of domestic violence;
– If there are child protection concerns – the child would be the subject of the application and the subject of enquiries by the Local Authority;
– Urgency – if there is a risk to your life, liberty or physical safety or your family or any delay caused by attending a MIAM would cause risk of harm to a child, or there is a risk of unlawful removal of a child from the UK or retention of a child outside England and Wales, or you would suffer unreasonable hardship;
– Previous MIAM attendance – if you have attended mediation (or another type of non-court dispute resolution) in the last four months leading up to making your application relating to the same dispute;
– There is evidence that you are bankrupt and the Court application would be relating to finances;
– If you do not have contact details for your opponent;
– If the application is being made without notice to the other party;
– If either party suffers from a disability that would prevent attendance at a MIAM unless appropriate facilities can be provided by the mediator and all mediators within 15 miles of their home have been contacted;
– If you or the other party are in prison, or are subject to bail conditions not to contact the other person;
– If you or the other party are subject to a licence with prohibited contact requirement in relation to the other person;
– If neither you nor the other party are habitually resident in England and Wales;
– If a child is one of the prospective applicants

At your initial appointment, the Mediator will discuss with you whether you are eligible for legal aid for the mediation process.

Conclusion

Legal Aid is only now available in very limited circumstances unless there is written evidence of domestic violence.

The alternative to legal aid is to privately finance your case or do it yourself.

Unless you are exempt from the rules about Mediation, before you can go to Court you must at least attend a MIAMS meeting with a Mediator.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.