Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
95

Schedules
Schedule 1
Section 8

Civil legal services
Part 1
Services
5
Care, supervision and protection of children
1     (1)
Civil legal services provided in relation to—
(a)
orders under section 25 of the Children Act 1989 (“the 1989 Act”)
(secure accommodation);
(b)
orders under Part 4 of the 1989 Act (care and supervision);
10
(c)
orders under Part 5 of the 1989 Act (protection of children);
(d)
approval by a court under paragraph 19 of Schedule 2 to the 1989 Act
(arrangements to assist children to live abroad);
(e)
parenting orders under section 8 of the Crime and Disorder Act 1998
(“1998 Act”);
15
(f)
child safety orders under section 11 of the 1998 Act;
(g)
orders for contact under section 26 of the Adoption and Children Act
2002 (“the 2002 Act”);
(h)
applications for leave of the court to remove a child from a person’s
custody under section 36 of the 2002 Act;
20
(i)
placement orders, recovery orders or adoption orders under Chapter
3 of Part 1 of the 2002 Act (see sections 21, 41 and 46 of that Act);
(j)
orders under section 84 of the 2002 Act (parental responsibility prior
to adoption abroad);
(k)
any other orders or procedures under an enactment for the care,
25
supervision or protection of children that are prescribed for the
purposes of this paragraph.
      (2)
Civil legal services provided in relation to an order under an enactment
made—
(a)
as an alternative to an order mentioned in, or prescribed under,
30
paragraph 1, or
(b)
in proceedings heard together with proceedings relating to such an
order.

Exclusions
      (3)
Sub-paragraphs (1) and (2) are subject to the exclusions in Parts 2 and 3 of
35
this Schedule.

Definitions

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Schedule 1 — Civil legal services
Part 1 — Services
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      (4)
In this paragraph “children” means persons under the age of 18.
Special educational needs
2     (1)
Civil legal services provided in relation to matters arising under Part 4 of the
Education Act 1996 (special educational needs).

Exclusions
5
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
Abuse of child or vulnerable adult
3     (1)
Civil legal services provided in relation to abuse of an individual that took
place at a time when the individual was a child or vulnerable adult, but only
10
where the services are provided—
(a)
to the individual, or
(b)
for the purposes of a claim under the Fatal Accidents Act 1976 for the
benefit of the individual’s dependants.

General exclusions
15
      (2)
Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule, with
the exception of paragraphs 1, 3, 8 and 12 of that Part.
      (3)
But the exclusions described in sub-paragraph (2) are subject to the
exception in sub-paragraph (4).
      (4)
The services described in sub-paragraph (1) include services provided in
20
relation to negligence other than clinical negligence.
      (5)
Sub-paragraph (1) is subject to the exclusion in Part 3 of this Schedule.

Specific exclusion
      (6)
The services described in sub-paragraph (1) do not include services
provided in relation to a matter arising under a family enactment.
25

Definitions
      (7)
In this paragraph—
“abuse” means physical or mental abuse, including—
(a)
sexual abuse, and
(b)
abuse in the form of violence, neglect, maltreatment and
30
exploitation;
“child” means a person under the age of 18;
“clinical negligence” means breach of a duty of care or trespass to the
person committed in the course of the provision of clinical or medical
services (including dental or nursing services);
35
“family enactment” has the meaning given in paragraph 10;
“vulnerable adult” means a person aged 18 or over whose ability to
protect himself or herself from abuse is significantly impaired
through physical or mental disability or illness, through old age or
otherwise.
40
Working with children and vulnerable adults
4     (1)
Civil legal services provided in relation to—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
97

(a)
the inclusion of a person in a barred list or the removal of a person
from a barred list;
(b)
a disqualification order under section 28, 29 or 29A of the Criminal
Justice and Court Services Act 2000 (disqualification from working
with children);
5
(c)
a direction under section 142 of the Education Act 2002 (prohibition
from teaching etc).

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.
10

Definitions
      (3)
In this paragraph “barred list” means a list maintained under—
(a)
section 2 of the Safeguarding Vulnerable Groups Act 2006 (persons
barred from regulated activities relating to children or vulnerable
adults);
15
(b)
section 81 of the Care Standards Act 2000;
(c)
section 1 of the Protection of Children Act 1999.
Mental health and mental capacity
5     (1)
Civil legal services provided in relation to matters arising under—
(a)
the Mental Health Act 1983;
20
(b)
paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act
1984;
(c)
the Mental Capacity Act 2005.

General exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
25
Schedule.

Specific exclusion
      (3)
The services described in sub-paragraph (1) do not include services
provided in relation to—
(a)
the creation of lasting powers of attorney under the Mental Capacity
30
Act 2005, or
(b)
the making of advance decisions under that Act.
      (4)
Sub-paragraph (3) does not exclude services provided in relation to
determinations and declarations by a court under the Mental Capacity Act
2005 as to the validity, meaning, effect or applicability of—
35
(a)
a lasting power of attorney that has been created, or
(b)
an advance decision that has been made.
Community care
6     (1)
Civil legal services provided in relation to community care services.

Exclusions
40
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
98

      (3)
In this paragraph—
“community care services” means services which a relevant person
may provide or arrange to be provided under—
(a)
Part 3 of the National Assistance Act 1948 (“the 1948 Act”)
(local authority support for children and families);
5
(b)
section 47 of the 1948 Act (removal to suitable premises of
persons in need of care and attention);
(c)
section 48 of the 1948 Act (temporary protection for property
of persons admitted to hospital);
(d)
section 45 of the Health Services and Public Health Act 1968
10
(arrangements for promoting welfare of old people);
(e)
section 117 of the Mental Health Act 1983 (after-care);
(f)
section 17 of the Children Act 1989 (“the 1989 Act”)
(provision of services for children in need);
(g)
section 20 of the 1989 Act (provision of accommodation for
15
children);
(h)
sections 22A, 22B, 22C and 23 of the 1989 Act
(accommodation and maintenance for children in care and
looked after children);
(i)
sections 23B and 23C of the 1989 Act (local authority
20
functions in respect of relevant children);
(j)
sections 24, 24A and 24B of the 1989 Act (provision of services
for persons qualifying for advice and assistance);
(k)
section 254 of, and Schedule 20 to, the National Health
Service Act 2006 (functions of local social service authorities);
25
(l)
section 192 of, and Schedule 15 to, the National Health
Service (Wales) Act 2006 (functions of local social service
authorities);
(m)
any other enactment prescribed for the purposes of this
paragraph;
30
“relevant person” means—
(a)
a district council;
(b)
a county council;
(c)
a county borough council;
(d)
a London borough council;
35
(e)
the Common Council of the City of London;
(f)
a Primary Care Trust established under section 18 of the
National Health Service Act 2006;
(g)
a Local Health Board established under section 11 of the
National Health Services (Wales) Act 2006;
40
(h)
any other person prescribed for the purposes of this
paragraph.
Inherent jurisdiction of High Court in relation to children and vulnerable adults
7     (1)
Civil legal services provided in relation to the inherent jurisdiction of the
High Court in relation to children and vulnerable adults.
45

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

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Schedule 1 — Civil legal services
Part 1 — Services
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Definitions
      (3)
In this paragraph—
“adults” means persons aged 18 or over;
“children” means persons under the age of 18.
Unlawful removal of children from the United Kingdom
5
8     (1)
Civil legal services provided to an individual in relation to the following
orders and requirements where the individual is seeking to prevent the
unlawful removal of a related child from the United Kingdom—
(a)
a prohibited steps order or specific issue order (as defined in section
8(1) of the Children Act 1989);
10
(b)
an order under section 33 of the Family Law Act 1986 for disclosure
of the child’s whereabouts;
(c)
a requirement under section 37 of that Act to surrender a passport
issued to, or containing particulars of, the child.

Exclusions
15
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions
      (3)
For the purposes of this paragraph, a child is related to an individual if the
individual is the child’s parent or has parental responsibility for the child.
20
      (4)
In this paragraph “child” means a person under the age of 18.
Family homes and domestic violence
9     (1)
Civil legal services provided in relation to home rights, occupation orders
and non-molestation orders under Part 4 of the Family Law Act 1996.
      (2)
Civil legal services provided in relation to the following in circumstances
25
arising out of a family relationship—
(a)
an injunction following assault, battery or false imprisonment;
(b)
the inherent jurisdiction of the High Court to protect an adult.

Exclusions
      (3)
Sub-paragraphs (1) and (2) are subject to—
30
(a)
the exclusions in Part 2 of this Schedule, with the exception of
paragraphs 3 and 11 of that Part, and
(b)
the exclusion in Part 3 of this Schedule.

Definitions
      (4)
For the purposes of this paragraph—
35
(a)
there is a family relationship between two people if they are
associated with each other, and
(b)
“associated” has the same meaning as in Part 4 of the Family Law Act
1996 (see section 62 of that Act).
      (5)
For the purposes of this paragraph, the Lord Chancellor may by regulations
40
make provision about when circumstances arise out of a family relationship.

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Schedule 1 — Civil legal services
Part 1 — Services
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Victims of domestic violence and family matters
10    (1)
Civil legal services provided to an adult (“A”) in relation to a matter arising
out of a family relationship between A and another individual (“B”) where
A has been abused by B or is at risk of being abused by B.

General exclusions
5
      (2)
Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule, with
the exception of paragraph 11 of that Part.
      (3)
But the exclusions described in sub-paragraph (2) are subject to the
exception in sub-paragraph (4).
      (4)
The services described in sub-paragraph (1) include services provided in
10
relation to conveyancing, but only where—
(a)
the services in relation to conveyancing are provided in the course of
giving effect to a court order made in proceedings, and
(b)
services described in that sub-paragraph (other than services in
relation to conveyancing) are being or have been provided in relation
15
to those proceedings under arrangements made for the purposes of
this Part of this Act.
      (5)
Sub-paragraph (1) is subject to the exclusion in Part 3 of this Schedule.

Specific exclusion
      (6)
The services described in sub-paragraph (1) do not include services
20
provided in relation to a claim in tort in respect of the abuse of A by B.

Definitions
      (7)
For the purposes of this paragraph—
(a)
there is a family relationship between two people if they are
associated with each other, and
25
(b)
“associated” has the same meaning as in Part 4 of the Family Law Act
1996 (see section 62 of that Act).
      (8)
For the purposes of this paragraph—
(a)
matters arising out of a family relationship include matters arising
under a family enactment, and
30
(b)
(subject to paragraph (a)) the Lord Chancellor may by regulations
make provision about when matters arise out of a family
relationship.
      (9)
In this paragraph—
“abuse” means physical or mental abuse, including—
35
(a)
sexual abuse, and
(b)
abuse in the form of violence, neglect, maltreatment and
exploitation;
“adult” means a person aged 18 or over;
“child” means a person under the age of 18;
40
“family enactment” means—
(a)
section 17 of the Married Women’s Property Act 1882
(questions between husband and wife as to property);
(b)
the Maintenance Orders (Facilities for Enforcement) Act
1920;
45
(c)
the Maintenance Orders Act 1950;

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 1 — Civil legal services
Part 1 — Services
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(d)
the Maintenance Orders Act 1958;
(e)
the Maintenance Orders (Reciprocal Enforcement) Act 1972;
(f)
Schedule 1 to the Domicile and Matrimonial Proceedings Act
1973 (staying of matrimonial proceedings) and
corresponding provision in relation to civil partnerships
5
made by rules of court under section 223 of the Civil
Partnership Act 2004;
(g)
the Matrimonial Causes Act 1973;
(h)
the Inheritance (Provision for Family Dependants) Act 1975;
(i)
the Domestic Proceedings and Magistrates’ Courts Act 1978;
10
(j)
Part 3 of the Matrimonial and Family Proceedings Act 1984
(financial relief after overseas divorce etc);
(k)
Parts 1 and 3 of the Family Law Act 1986 (child custody and
declarations of status);
(l)
Parts 1 and 2 of the Children Act 1989 (orders with respect to
15
children in family proceedings);
(m)
section 53 of, and Schedule 7 to, the Family Law Act 1996
(transfer of tenancies on divorce etc or separation of
cohabitants);
(n)
Chapters 2 and 3 of Part 2 of the Civil Partnership Act 2004
20
(dissolution, nullity and other proceedings and property and
financial arrangements);
(o)
section 54 of the Human Fertilisation and Embryology Act
2008 (applications for parental orders).
Protection of children and family matters
25
11    (1)
Civil legal services provided to an adult (“A”) in relation to the following
orders and procedures where the child who is or would be the subject of the
order is at risk of abuse from an individual other than A—
(a)
orders under section 4(2A) of the Children Act 1989 (“the 1989 Act)”
(removal of father’s parental responsibility);
30
(b)
orders under section 6(7) of the 1989 Act (termination of
appointment of guardian);
(c)
orders mentioned in section 8(1) of the 1989 Act (residence, contact
and other orders);
(d)
special guardianship orders under Part 2 of the 1989 Act;
35
(e)
orders under section 33(1) of the Family Law Act 1986 (“the 1986
Act”) (disclosure of child’s whereabouts);
(f)
orders under section 34(1) of the 1986 Act (recovery of child);
(g)
any other orders or procedures under an enactment relating to
children that are prescribed for the purposes of this paragraph.
40

Exclusions
      (2)
Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions
      (3)
In this paragraph—
45
“abuse” means physical or mental abuse, including—
(a)
sexual abuse, and