Guide to Legal Aid in Family Cases and the Importance of Dispute Resolution

What is Legal Aid

Legal aid in family cases and in general is financial assistance towards legal fees and costs of proceedings received by a litigant upon fulfilling the legal aid criteria”.

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What is included?

  • What is Legal Aid
  • Introduction
  • Scope of Legal Aid
  • Dispute Resolution
  • Types of Dispute Resolution in Family cases
  • Mediation
  • Arbitration
  • What would you do next?

Introduction

In the near past, the legal aid was readily available to litigants with modest financial means(Means Test) and who had a genuine chance of succeeding in their claim (Merits Test) and asserting their legal rights, However, following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) in April 2013, legal aid has not been available for most cases under family law. The means and merit tests still exist but the eligibility criteria is further restricted.

The new strict rules for eligibility under LASPO, for the grant of Legal Aid, have a profound effect on dispensing justice in the family courts. The courts have seen a steady rise in the number of Self Representing Litigants.

Scope of Legal Aid

The limited number of family cases are within the scope of the grant of legal aid. These are following

 (a) Public law children proceedings, generally known as Care Proceedings

(b) Family cases involving the obtaining of protective injunctions. These injunctions include non-molestation orders, occupation orders, and forced marriage protection orders

(c) Cases where a child under the age of 18 is an Applicant, Respondent, or joined as a party to the proceedings.

(d) In limited circumstances, legal aid can be granted to family and immigration cases which involves securing a Court order to prevent the unlawful removal of a child from the UK or to secure the return of a child unlawfully removed from or within the UK.

Domestic Violence

For all other family cases such as Child Arrangement Orders, Divorce, and Financial Remedy, unfortunately, there is no legal aid available, however, in limited circumstances, a litigant can be granted legal aid provided

  • The litigant can prove that he/she is a victim of domestic violence; or
  • The case involves protecting a Child where such a child is at risk of abuse.

Recovery of Legal Aid

It is important to understand that under LASPO, the legal aid agency has an inherent right to recover the monies paid under legal aid, in cases where the litigant benefits financially from the case, any property that he receives can be taken by the Legal Aid Agency and applied in payment of his legal fees. This is known as a statutory charge.

Dispute Resolution

Litigation is always an expensive endeavour. In light of recent changes in the availability of Legal Aid in family cases, there is a renewed stress on dispute resolution and been given a new lease of life

 Following the implementation of the Family Procedure Rules (FPR) 2010, there is a much greater emphasis on dispute resolution in family cases. Under FPR the family court is obliged to consider at every stage of family proceeding whether dispute resolution is appropriate, and may adjourn the case for the purpose of obtaining information about dispute resolution and, with the agreement, for it to take place.

Types of Dispute Resolution in Family cases

The most common dispute resolution arrangements are Mediation and Arbitration.

Mediation

The disputing parties can contact their nearest family mediation services.  Mediators are trained professionals who have no authority to make or impose any decisions but who use certain skills to help the parties involved in family litigation to resolve their issues by negotiated agreement. The mediator will try to help the parties to clarify and resolve their issues on a basis which they find mutually acceptable and without going to the Family Courts or pursuing expensive litigation.

Arbitration

The difference between mediation and arbitration is that in arbitration an independent third party considers the dispute and makes a decision., whereas in mediation the independent mediator helps the parties to reach a mutually acceptable agreement.  The decision of the Arbitrator is binding on the parties in extremely rare circumstances the Family court would allow or agree to overturn that decision.

The lack of legal aid and the nature of family litigation, it is advised that potential family disputes should be resolved through the dispute resolution mechanism. As litigation is expensive, stressful and could take years.

For more details on the issues raised in this news article, you can speak to our experienced Child and Family law team through Instant Access.

What would you do next?

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This Article is written by Syed Aamir (Solicitor)
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