Legal Aid and Family Law

7th Oct 2015

It is now no longer possible to obtain legal aid for Section 8 applications under the Children Act 1989 (residence/contact disputes) unless the applicant can prove that they have been the victim of domestic violence or there are child protection issues, and proof of this must be provided by relevant agencies such as a GP, Health Visitor, Social Worker etc. The number of people representing themselves has increased.

There have also been changes to the way in which Public Law Children work (where there are applications made by local authorities for either care or supervision orders) and a new Public Law Outline has been introduced.

The new PLO states that all child care cases must now be completed in a timely fashion, and certainly within 26 weeks or less, unless the case is complex, but even then we are encouraged to deal with it as near to the 26 weeks deadline as possible.

To explain, prior to the new PLO child care cases could take as long as 12 months to dispose of, with quite often final hearings lasting in excess of 5 days.

We are now encouraged to deal with matters in an efficient and robust way, and certainly within faster timescales. This may mean that some parents will feel that their case is being dealt with too quickly, and that they do not have sufficient time in which to make amends to their lifestyle or correct alcohol or drug addiction.

A further change that has taken place is the use of experts within care proceedings. Prior to the new PLO it was normal practice to instruct experts such as psychiatrists (where there were mental health issues) or psychologists to gain further insight into the way a particular parent or child was behaving, and such reports, once prepared, would assist the court by making recommendations to assist with contact and placement of the children.

However, practitioners are now told that "if in doubt do without". The President of the Family Division recently came to Bournemouth and Poole County Court to give a lecture on the new PLO and he stated that the days of long final hearings, multiple experts and multiple bundles were at an end, and that all practitioners now had to give more robust advice in order that the matter could be dealt with in a timely fashion. The "timely fashion" is meant to be in the best interests of the children, but sometimes the parent may feel that there is insufficient time in which to address the issues and concerns of social services.

It is sometimes possible, depending on the complexity of the case, to deal with care proceedings without the instruction of experts or extending the 26 week period. The writer has just finished one such case, where the children are now going to be reunited with their Mother, and the matter has finished well within the 26 week deadline.

However the writer is also dealing with a case of non accidental injury where not one, but four experts have had to be instructed on case of great complexity and on this occasion the court has agreed with the instruction of the experts as without their input and expertise it would be extremely difficult for the court to make a decision about the future of the child in question.

Each case therefore has to be taken on its complexity but parents should be aware that the courts wish to deal with matters efficiently and robustly, and the missing of court filing dates will not be tolerated any longer, and further, that if they wish to redress the concerns in the case that they must do so immediately and engage with all professionals in the case.