Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.

Domestic Violence Injunctions – good practice reminder

I had to go back to the Red Book this week to check something about non-molestation orders and I came across this case, which I have read before, but which is well worth a reminder. It covers so much ground about what should not happen in non-mol cases, including one point which has bugged me for years but which I had thought there was no settled authority on – on previous readings of the case I had not absorbed the fact that the answer to my niggle was in there. The case is the judgment of R v R [2014] EWFC 48, [2015] 2 FLR 1005. Unusually, it can be found on Jordans Family Law but not on BAILII (or at any rate it doesn’t come up with the citation search function). I would have thought this is just the sort of case that SHOULD be on BAILII for litigants in person, particularly unrepresented respondents to non-mol applications to be able to find. I’ve linked to the Family Law coverage, which includes the full transcript. [Update, within a millisecond of posting the amazeballs @johnbolch found the BAILII link – here it is : I can also see from that link that the case is on WLR / ICLR too.]

I won’t rehearse the full facts, but it does make pretty grim reading. It’s an important thing to remember the boundaries of what is appropriate in applications for this sort of injunction, and the procedural requirements in order to be fair and just, particularly in an environment where there are undeniably perverse incentives to litigants to make allegations in order to secure “victims” legal aid. We know that there has been a spike since LASPO in non-mol applications and on perfectly reasonable explanation is that this is a distortion arising from the legal aid arrangements since 2013.

What you will recall from R v R if you read it at the time was the stern judicial reminder that the question on an ex parte (without notice) application was not “Why not?” but “Why?”. But there is more to R v R than that.

The point that struck me that I wanted to expand upon is the distinction between non-molestation and occupation orders. I don’t do many non-mols these days (faaahhr too important daahhling ;-)), and each time I go back to the law I struggle with the continual attempts to secure an ouster type provision by means of a non-mol, thereby bypassing all the law about the rarity of ex parte occupation orders. Usually my pedantry falls on deaf ears but now I have something to back my whining up with.

It is clear from R v R that care should be taken to ensure that non-molestations orders do not in effect amount to an occupation order by the back door – either through the imposition of an exclusion area or through other terms.

Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person’s freedom of action and require specific evidence to justify them. 

In R v R the judge stated she would not make an occupation order, but went on to prohibit the Respondent from entering the street and from communicating at all with the Applicant. If she expected them to continue under the same roof (with 5 children) how was F to conduct himself without either being ousted from the property or breaching?

There are specific reasons for this quite apart from the general (and serious) unfairness that can result, as illustrated by R v R – it is a criminal offence to breach a non-molestation order, but not so with an occupation order – so the correct characterisation matters. Secondly, a respondent is entitled to rely on the expectation that he will not be ousted from his home without first being heard unless the circumstances are really pressing and serious.

The Red Book (Family Court Practice 2015) asserts, rightly in my view, at 1015 that :

A “stay away” clause [eg not to come within 100 metres]…could be expressed as part of an occupation order but it is not necessary to make an occupation order solely for that purpose and can be included in a non-molestation order. Such a provision should not be included as a matter of routine, must be proportionate and necessary and supprted by evidence [R v R cited]. A “get out” order, ie an order requiring a party to leave, cannot form part of a non-molestation order and must be made as part of an occupation order. 

There are some useful reminders also of the need to interpret the rules in relation to relief from sanction appropriately where the stakes are high and only one party, usually the one not at risk of losing their home, has the benefit of legal aid.

National Pro Bono Week – How was it for you?

Judi Evans – Head of the Family Department, St Johns Chambers, Bristol on the first ever session of the Bristol Pro Bono Family Scheme.

Last week was National Pro Bono week, and it coincided with the launch of the Bristol pro bono Family Scheme. I’d like to say it was a perfectly orchestrated plan, but in truth, the pro bono scheme took a long time to set up (over a year), and so it was rather by accident than design that the launch on the 5th November fell within National Pro Bono Week.

How was it? Only time and feedback will tell I guess.

Will it help LiPs who cannot afford legal advice, to summon the courage to enter a Court room without a lawyer, and give them some sort of road map as to where they and their children need to be headed, along with a small degree of realism? I hope so.

Will this free 30 minutes enable LiPs to conduct a contested hearing? address legal issues? cross-examine and make submissions? No, a resounding No from me. A free 30 mins legal help couldn’t possibly prepare a person for the complexities of litigation. If that was the case, what on earth have we all been doing spending years of our time reading Law and doing Bar Finals? Mastering law and procedure, and different terminology, on top of managing heightened emotions about your child is a big ask for a LiP. Some would say its impossible.

So, what does the scheme involve?

The scheme runs every Thursday from 10 – 4pm. There are 7 appointment slots, with 15 minutes break in between. Its not a ‘children day’ for 1st appointments, so people wanting advice are not waiting to go in to Court. The advice does not include representation in Court. The commitment from lawyers prepared to volunteer will be to offer 1 day a year to the scheme.

Anyone wanting 30 mins free legal advice needs to book a slot through the PSU. The PSU then send the booking form to the ‘duty lawyer’ on a Tuesday to conflict check the names. The booking form contains a summary of the issues.

And so, I put my name down to do Thursday 5th November, which happened to be the first ever session. Then a funny thing happened. Life got in the way. Life that involves paying the mortgage and having a responsibility to others who need my help every bit as much.

A private law case for a client I had represented on a number of occasions previously, was listed at 2pm for directions on the same day. Should I swap with someone else on the pro bono rota? cause inconvenience and confusion with a risk that the same thing will happen again? Should I return the afternoon case? What about my poor client, who needed continuity? I knew the history. It wasn’t fair to let that person down.

In the end it was simplest to do both, starting earlier at 9.30, and doing 5 free advice slots instead of 7. Finishing just after 1pm, and then doing my afternoon’s case.

And that’s the point with Pro bono. It will never be a substitute for properly funded legal advice and representation, those of us who volunteer will do our best. But you cant run a justice system on the good will of people who have other commitments to fulfill. Its the tiniest droplet of help in an ocean of need.

Following the introduction of LASPO the number of applications for private law orders at the Bristol CJC fell by about 40%. I understand there has been an increase in applications by about 15% this year … will the pro bono scheme make a difference? Will it enable more people to feel confident enough to seek help?

So, what was it like last Thursday? What of the people I met? Obviously I cant give too many details, these things are confidential, but what was interesting was that all who attended (apart from one) were contemplating litigation, but worried about doing so. Care worn, confused, and highly anxious even desperate is how I would describe them. “Its taking over my life, and it hasn’t even started” said one young woman, as she tried to soothe her small infant to sleep and listen to me and make notes.

And so, I talked, and answered questions about mediation, procedure, s.1 of the Children Act 1989, how to address a Judge, confirmed they could be cross-examined by their ex partner, discussed why we put the child’s welfare at the centre of the case. Made referrals in one complex matter to the Bar Pro Bono Unit, referred people to the Bristol website, encouraged people to think through what they thought was best for their child, and to look at it from the other parents point of view. Even in one case handing out the duty rota list to a person who wanted to pay for legal advice before each hearing but to self represent at Court. Is this unbundled services? (under the scheme we can subsequently act for those we meet, provided we give that person a copy of the duty rota, to draw attention to other lawyers on the list).

And so, whilst I understand the (legitimate) point of view of those who say that the duty scheme is helping /colluding with legal aid cuts, I cant agree with it. The scheme is never, ever, going to replace proper state funded help, given to people who need it, in a timely manner, for the sake of our next generation. At best, I hope the scheme will operate so as to encourage/empower people to take the first steps to seeking legal redress though the Courts as an option of last resort.