What does “exceptional” mean in a post-LASPO world?

Some have speculated that once LASPO 2012 has been implemented on 1 April and pretty much everything falls out of scope there will be plenty of – erm – scope – for applications under the “exceptional cases” provisions (Legal aid cuts? What legal aid cuts? [2012] Fam Law 1267, Peter Graham Harris, Oxford Centre for Family Law & Policy and Exeter College, University of Oxford). I don’t want to be the bearer of bad news but I fear that the The Man may have other ideas….

As Patrick at iLegal notes:

The Lord Chancellor has now published guidance on exceptional cases in out of scope areas post April. These try to put the most restrictive emphasis on what cases might be brought. However what is absolutely not clear is who will be able actually to bring exceptional cases in those areas coming completely out of scope. As there will be no contracts in those areas and no specialist advisers/lawyers, who would actually be able to make a legal aid application in an out of scope area? Answers on a postcard please.

So. The Guidane. It’s a long old document, so to try and focus on Family I’ll flag a few of the most striking paragraphs (this is emphatically not a systematic approach, I may have missed many more important bits). You can find the full guidance on funding here, and the separate document on exceptional funding here.

“7.11 …For the avoidance of doubt applications for legal aid under section 10 of the Act (exceptional funding) in family proceedings which are listed in Part 1, Schedule 1, but where there is no evidence of domestic abuse or child abuse as required by paragraphs 12 and 13, will be considered by reference to the family criteria contained in Chapter 6.”

The reference to the “family criteria in Chapter 6″ is a reference to the Civil Legal Aid (Merits Criteria) Regulations 2013. From what I can tell it’s like a super charged version of the old means merits criteria. Now its a sort of means-merits-public interest-reasonable privately paying client-has exhausted all ombudspersons and complaints processes-criterion extravaganza. One might ponder whether a case that passed that battery of tests would be exceptional per se… Anyhoo.

8.23 reminds us that the domestic violence / child protection evidential hurdles in Regulations 33 and 34 of the Civil Legal Aid (Procedure) Regulations 2013 do not apply in public law children work, inherent jurisdiction and international abduction generally, non-mols or forced marriage. Jolly good. A notable exception is PSO applications, for example in cases of domestic abduction or non-return. Although it can be seen that in reg 34 one can make concurrent non-mol and PSO applications for the protection of the child and rely on that application in order to pass the evidential test.

For those who have forgotten the types of evidence which will be required to satisfy the LSC that you really are a victim of d.v. see Reg 33 here. The equivalent provision in respect of Child Protection is here (reg 34).

10.13  Providing guardian services is a core function of CAFCASS. It should not be necessary for the solicitor to be appointed and act as guardian except in purely specialist cases. Given this, solicitors considering accepting appointment as guardian should ascertain the availability of legal aid prior to acceptance of appointment. In any event any certificate issued will not cover work or expenses incurred as guardian (rather than as solicitor).

So, beware children solicitors. When the levee breaks and the court wants Guardians to come to the rescue, and CAFCASS say they can’t provide any more guardians (remember 2009/10?) – don’t think the LSC will pick up the tab for CAFCASS like they did last time they were overwhelmed.

Next…

10.23 In the case of discharging a care order there are cases where the purpose of the application is to refer the case back to the court for further consideration, in particular because an important element or elements of the care plan, have not been followed through. In those cases the Independent Reporting Officer (IRO) can, as a last resort, refer the matter to CAFCASS Legal or CAFCASS Cymru who can take proceedings against the local authority on behalf of the child. Adults with sufficient interest (or children capable of giving instructions direct) would need to show that the case has been considered by the IRO and the issues have not been resolved before the criteria for legal representation in Regulation 66(2)(a) of the Merits Regulations will be met.

Hang on, run that past me again. The IRO can kick CAFCASS into taking proceedings against a Local Authority to discharge a care order? Oh yes and paragraph 9 3/4 provides that winged pigs will be eligible for legal aid (subject to a means and merits test). On the other hand showing that the IRO has looked at it and failed to resolve the issues shouldn’t be too difficult to evidence in many cases…

10.25 In relation to an application with regard to proceedings under the inherent jurisdiction, consideration should be given as to whether this is the most appropriate jurisdiction. Proceedings for example under the 1989 Act, the Family Law Act 1986 or the Child Abduction and Custody Act 1985 may well provide an appropriate remedy rather than an application under the inherent jurisdiction. The use of inherent jurisdiction for ?seek and find? orders may, for example, be unreasonable in the light of the range of orders available under the Children Act 1989 and the Family Law Act 1986 (Merits Regulation 66(2)).

What this means is that the LSC would prefer it if people didn’t make applications for seek and find type orders under the Inherent Jurisdiction, cos those are eligible for legal aid. They would prefer it if people would make applications under statutory powers for which there is no funding. Hmmm. Incidentally the reference to Reg 66 is odd, because that relates to public law, whereas many (most?) of these orders arise within private law proceedings.

10.32 The prospects of success criteria (Merits Regulation 67(2)(a)) and the proportionality test (Merits Regulation 67(2)(b) are unlikely to be satisfied by a respondent to non molestation proceedings or a forced marriage protection order only, unless there are very serious allegations which are plausibly denied wholly or substantially. An exception is where there is any question of inability to defend, for example because of mental incapacity or age, in which case a grant is likely to be justified. When considering the proportionality test, the impact on the client of the order sought will be taken into account, including any impact on contact or other related family proceedings.

So, just in case you were thinking “Well, respondents to non-mols never got funding anyway, no big deal there” – don’t forget respondents to Forced Marriage Protection Order applications will also not qualify (except rarely judging by the guidance). Thats pretty startling. I’m struggling to imagine that many FMPO applications that are properly made DON’T contain “very serious allegations”, and not only are most of them denied, many of them may well be “plausibly denied” as forced marriage can be difficult to get to grips with and prove.

10.37 In cases regarding the welfare of children where the claim is not quantifiable in monetary terms cost benefit must be in terms of a significant improvement in the arrangements for that child or children viewed objectively. This will not, however, justify the grant of representation to apply for a residence order which would have the effect of varying residence where the client is unlikely to obtain a residence order and the likely significant improvement would be in arrangements for contact. In those circumstances an application to be represented on an application for contact would be more appropriate. Issues of detail (e.g. frequency and extent of contact including whether staying contact should take place) rather than principle (e.g. no direct contact) are unlikely to justify a grant, in particular as a reasonable private paying client would be unlikely to continue contested proceedings but would rather seek to compromise the issue(s). The fact that the parties cannot agree at the outset does not of itself justify the grant or continuation of public funding.

So the details of contact arrangements aren’t important enough to qualify. “Details” being basically er… everything…apart from the principle of any contact, which in truth is rarely a genuine issue. So a reasonable paying client would be likely to compromise? How can one square this with the notion that all the clients in question are in effect deemed (for the purposes of funding) as victim of domestic violence, and whose eligibility for funding is base on a need to ensure that those who are vulnerable to pressure or intimidation are protected from it? One might say that a reasonable paying client who has been the victim of dv serious enough to qualify for legal aid in the first place, or who has concerns sufficiently serious to be able to pass the child protection test in reg 34 might be entirely reasonable in wishing to pursue minor “details” regarding contact, such as supervision or overnight stays.

The shorter and slightly more manageable document is the one on exceptional funding.

Of note :

Under “How capable is the applicant of presenting their case?” we find a list of questions, one of which is “Will the case be heard in a tribunal or other venue that is well used to dealing with litigants in person?”. Har de Har. It will be flippin’ well used to it soon enough. The next question is : “Is there a Mackenzie [sic] friend who could be granted permission to speak on behalf of a party to proceedings?”. Eek. Not quite equivalent. Especially in light of Re H[2012] EWCA Civ 1797.

And that, me dears is where my concentration span gave out. The task of reading two sets of guidance, sifting out the dross / non family stuff, cross referencing it to LASPO and 2 sets of regulations (which are not clearly distinguished between when referred to in the guidance itself) was really above and beyond the call of blogging. I suspect that most of us will turn to this guidance in despair when we need to look for a specific reason.

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19 thoughts on “What does “exceptional” mean in a post-LASPO world?

  1. On the IRO issue the system is a bit of a joke. When I was looking at it last year IRO’s had made something hopeless like 8 referrals in the 8 years the Regulations had been in force and CAFCASS had issued exactly no proceedings, including one where their investigation had taken most of a year. CAFCASS reports are supposed to be completed in a matter of weeks in such cases.

  2. If I held the purse-strings and saw what family lawyers did with public money, I too would cut all funding of this kind and channel it into programs that actually help children.

    It’s something that you brought upon yourselves by behaving like wild west cowboys and girls.

    Far better that parents represent themselves in family courts. Fewer lies will be told. Less scheming and manipulation of language. More focus on the actual matter at hand.

    • Fewer lies because fewer lawyers? Having seen behind the closed door of privilege I can tell you that clients very much run their own cases, often not heeding advice or warning. We can caution clients to tell the truth but are not arbiters of it. If lawyers are guilty of anything it may be of not being sufficiently frank when a client is presenting a clearly implausible story, but I’ve not seen any reliable evidence lawyers have a hand in fabricating or encouraging lies, unless you count the giving of quite proper advice along the lines of an explanation of the sorts of very good reasons that would be required in order to avoid contact. Anyone who thinks proceedings will become less hard fought through the removal of lawyers is deluding themselves. Some will be less hard fought in the sense that parents will give up or refuse to engage. I doubt many parents will miraculously find themselves able to sort out their dispute just because they don’t have a lawyer dripping poison in their ear.

  3. Things won’t be any easier, but they won’t be any worse either.

    And that is the point.

  4. It’s lovely you are all protective of lawyers and how super they are at helping families resolve their issues, very touching.

    However, the reality is that many lawyers make things far worse while other lawyers can be very helpful and there are plenty inbetween.

    Once has only to read the legal ombudsman recent report and on the systematic plundering of clients bank accounts and the reports of other lawyers on the back of it who said they knew of ne’er do well lawyers bleeding clients dry.

    Parents are bad very often, so are lawyers and other persons within the family court system. To believe otherwise is wonderfully naive.

    • I don’t believe all (Family) lawyers are angels. I do think that on the whole they are doing it for the right reasons, although pricing and transparency of pricing (which I think was the main thrust of the report, although I confess I have not read it yet) has been a weak spot. I suppose from my perspective pricing is a bit of a non issues – when you work under legal aid you get what the fixed rate is, the client is not paying (or not paying directly) and is not going to get stung with a bill they didn’t know was being run up quite so fast. That is something which solicitors are bad at but which I think they are getting better at. The bar are probably also culprits to an extent, but the system operates rather differently there as they are briefed by the sols. There is a big shift in pricing and fee structure going on for sols at moment, and the market is very fluid with fixed price products emerging etc.
      I’m sure that there are some who, rather than simply not really thinking through their charging from a client perspective, are out to fleece clients – but I think that these are pretty few and far between – I think solicitors are heavily reliant on recommendations from former clients so it doesn’t serve to behave like a complete charlatan.

  5. Some good points Chambers, but we mustn’t forget that parents (I assume you mean mothers here, but let’s continue the farce of gender neutrality) are only as bad as they will be allowed to be.

    Let’s not kid ourselves.

    How bad parents (euphemism for mothers) are allowed to be depends on 1) the patience of the court (which has an interest in being very patient of course); and 2) the balancing act that lawyers have before them, which is one that involves bullying of the “opponent” (dad), but only up to the point that they don’t risk making their case even worse (which is dependent in turn on the court’s patience).

    I agree with Pinkaloo that there are some good lawyers; they are the ones representing the parents that go in with all the cards stacked against them.

    After all, the only good lawyer is one that represents the underdog.

    • However – why does the court have an interest in being very patient?
      The lawyers that represent the parents that have the cards stacked against them are the same ones who on other days are representing a client who appears to be holding all the cards. And of course, sometimes a client has the odds stacked against him or her because of their own past conduct. Then they are simply a client with a weak case rather than an underdog.

  6. Barristers in my experience are generally far better than solicitors when it comes to dealing with parties and finding a workable agreement.

    Some barrister chambers are well known for having a generally more conciliatory approach whilst others are best kept at arms length in negotiations (let the judge decide).

    I’ve seen solicitors try and turn their own client in negotiations away from agreements they are satisfied with (contact arrangements), to it seems satisfy their competitive streak and/or stretch the process out.

    Very often I see parents without lawyers sort things out very quickly with a judge who points them in the right direction.

    I’ve seen parents string things out for years on legal aid because there is simply now downside from their point of view but relatively quickly once LA is withdrawn come to an agreement which should have happened months or years previously.

    Good and bad everywhere within the system, including parents, lawyers etc.

    My understanding having some chats with senior barristers including QC’s is that we can expect that half of the barristers to be culled as well as law firms over the next few years, back to a level it was many years ago.

    You’re right we are seeing a big shift but I don’t think many lawyers really understand how big it is going to be over the next few years. I get the feeling many judges understand where we are heading but a lot of lawyers are still in denial.

    I refer weekly parents to solicitors I know and can trust, who will go through what they believe are extortionate lawyers fees from other firms/chambers and help these parents take large sums off from bills. The state of some of these bills is appalling many times with little adherence to the guidelines but these firms often get away with it because parents don’t complain hard enough or long enough.

    A while back I had a parent come to me who had been charged £30k+ by her lawyers for 5 hours in Court in total. Not uncommon.

    I think the shake up in the ‘market’ can only be a good thing and not before time. Hopefully the good will survive and the chaff be blown away.

  7. Chambers, you make some excellent points, most of which I agree with and accord with my experience.

    I think it generally is the case that lawyers make a big mess of things at taxpayer expense, and that barristers are hired to clean that mess up; but it is the way they clean up that mess that makes the difference.

    Some do it, as you say, through conciliation and negotiation (though in 95% of cases dad still gets cheated in both ways); others do it through brutality and bullying, which often just makes them look silly, but just as often has the effect of intimidating dads into submission and thus perpetuating child abuse in this country. After all, there are not many of us who can stand up to character assassination, never mind the fact that it is completely groundless.

    Pinkaloo – I’ve never seen any case where dad’s conduct warrants him being treated like a criminal; but perhaps you’ve had the misfortune of coming across such men, in which case you’d be excused for your stance, I suppose.

    • Er, However. Some dads ARE criminals. And some of those dad’s are criminals with convictions which are very relevant to their relationship with their children. And some of them end up in the family court. Similarly with Mothers, although the patterns of offending are generally rather different in my experience.

  8. However -

    You assumed wrongly – I said parents and I meant parents, both can behave as dreadfully as each other at times, both can behave impeccably, both in-between.

    The system elevates one parent above another routinely and when you do that. then parents react badly very often (no matter who is on top or at a disadvantage).

    I do agree with you that parents are only as bad as they are allowed to be by the courts in private law. Some who know they can get away with unhelpful behaviour will do so, to get one over on an ex or gain some advantage as they see it, often to the detriment of their children’s welfare.

  9. Since we are on the subject of criminals, there are some important points to be made here.

    One, there is a direct correlation between criminal behavior and the single-parent family that the nation has engineered for the past half-century. Criminals usually don’t have fathers, as anyone who would care to do the research would discover.

    Two, when you have lawyers, bankers and politicians doing such an excellent job of modeling criminal behavior, why do except more exemplary behavior from those who are sometimes financially desperate and without opportunity?

    The reason why more men are in jail has to do not with something innately gender-specific, but with sexist attitudes that women shouldn’t be penalized for the same crimes. Also, men have had the burden of carrying more responsibility in society, and that burden combined with fear and desperation sometimes results in criminal acts.

    Moreover, there are all sorts of criminals who pose no risk to their children, but all sorts of parents whose gruesome behavior in contact disputes is still not recognized as criminal. The label criminal is therefore just a convenient tag that suits whoever it needs to suit.

    • However, will you just READ THIS BACK TO YOURSELF A MINUTE : “The reason why more men are in jail has to do not with something innately gender-specific, but with sexist attitudes that women shouldn’t be penalized for the same crimes. Also, men have had the burden of carrying more responsibility in society, and that burden combined with fear and desperation sometimes results in criminal acts.”

      In short, women are to blame for both men’s criminality and for the fact of their punishment for it?

      Jog on mate. That is pretty offensive rot.

  10. I can’t understand what you are saying here. Why should women be responsible for crimes that – in your sexist opinion – only men are capable of committing. I think your projecting something here, and it is your blatant sexism that is offensive. Just have a look at any of your posts, including the recent one attacking gale for highlighting the rot that you have become so good at defending.

  11. I tried to answer this but the word but your system rejects any message which includes the word that begins with R and continues APE.

    In its usual form that offence is male-specific.

  12. Totally agree with Chambers comments. Parents who indulge in point scoring behaviour at the expense of the welfare of their children. Private law battles often commence when a relationship has ended and it becomes the theatre to play out the death throes of the relationship which wastes court time. money, and most seriously is at the detriment of children. I am not referring to cases where there are genuine concerns in the welfare checklist.

    As for help to those who don’t feel up to acting as LiP’s, I pity them as the legal aid cuts serve nobody and will only assist in creating a system in defeceit, where the Courts will have huge delays caused by backlogs, those unable to understand the arcane civil procedure rules, practice directions and case authority will find themselves forming more and more pressure groups, or worse ……. simply taking the law into their own hands. Death of Legal Aid = Death of a fair society.

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