Session 2010 - 12
Internet Publications
Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill


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

146

 

Family homes and domestic violence

13    (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

arising out of a family relationship—

5

(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—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

10

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—

(a)   

there is a family relationship between two people if they are

15

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

make provision about when circumstances arise out of a family relationship.

20

Victims of domestic violence and family matters

14    (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)   

there has been, or is a risk of, domestic violence between A and B,

and

25

(b)   

A was, or is at risk of being, the victim of that domestic violence.

           

General exclusions

      (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

30

exception in sub-paragraph (4).

      (4)  

The services described in sub-paragraph (1) include services provided in

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

35

(b)   

services described in that sub-paragraph (other than services in

relation to conveyancing) are being or have been provided in relation

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.

40

           

Specific exclusion

      (6)  

The services described in sub-paragraph (1) do not include services

provided in relation to a claim in tort in respect of the domestic violence.

           

Definitions

 
 

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

147

 

      (7)  

For the purposes of this paragraph—

(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

      (8)  

For the purposes of this paragraph—

(a)   

matters arising out of a family relationship include matters arising

under a family enactment, and

(b)   

(subject to paragraph (a)) the Lord Chancellor may by regulations

make provision about when matters arise out of a family

10

relationship.

      (9)  

In this paragraph—

“abuse” means any incident or repeated incidents of threatening

behaviour, violence or abuse (whether psychological, physical,

sexual, financial or emotional, and including acts of neglect,

15

maltreatment, exploitation or acts of omission) between adults who

are or have been intimate partners or family members, regardless of

gender or sexuality;

“adult” means a person aged 18 or over;

“domestic violence” means threatening behaviour, violence or abuse

20

(whether psychological, physical, sexual, financial or emotional)

between individuals who are associated with each other;

“family enactment” means—

(a)   

section 17 of the Married Women’s Property Act 1882

(questions between husband and wife as to property);

25

(b)   

the Maintenance Orders (Facilities for Enforcement) Act

1920;

(c)   

the Maintenance Orders Act 1950;

(d)   

the Maintenance Orders Act 1958;

(e)   

the Maintenance Orders (Reciprocal Enforcement) Act 1972;

30

(f)   

Schedule 1 to the Domicile and Matrimonial Proceedings Act

1973 (staying of matrimonial proceedings) and

corresponding provision in relation to civil partnerships

made by rules of court under section 223 of the Civil

Partnership Act 2004;

35

(g)   

the Matrimonial Causes Act 1973;

(h)   

the Inheritance (Provision for Family Dependants) Act 1975;

(i)   

the Domestic Proceedings and Magistrates’ Courts Act 1978;

(j)   

Part 3 of the Matrimonial and Family Proceedings Act 1984

(financial relief after overseas divorce etc);

40

(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

children in family proceedings);

(m)   

section 53 of, and Schedule 7 to, the Family Law Act 1996

45

(transfer of tenancies on divorce etc or separation of

cohabitants);

(n)   

Chapters 2 and 3 of Part 2 of the Civil Partnership Act 2004

(dissolution, nullity and other proceedings and property and

financial arrangements);

50

 
 

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

148

 

(o)   

section 54 of the Human Fertilisation and Embryology Act

2008 (applications for parental orders).

     (10)  

For the purposes of this paragraph, evidence that abuse has occurred may

consist of one or more of the following (without limitation)—

(a)   

a relevant court conviction or police caution;

5

(b)   

a relevant court order (including without notice, ex parte, interim or

final orders), including a non-molestation undertaking or order,

occupation order, forced marriage protection order or other

protective injunction;

(c)   

evidence of relevant criminal proceedings for an offence concerning

10

domestic violence or a police report confirming attendance at an

incident resulting from domestic violence;

(d)   

evidence that a victim has been referred to a multi-agency risk

assessment conference, as a high risk victim of domestic violence,

and a plan has been put in place to protect that victim from violence

15

by the other party;

(e)   

a finding of fact in the family courts of domestic violence by the other

party giving rise to the risk of harm to the victim;

(f)   

a medical report from a doctor at a UK hospital confirming that the

applicant has injuries or a condition consistent with being a victim of

20

domestic violence;

(g)   

a letter from a General Medical Council registered general

practitioner confirming that he or she has examined the applicant

and is satisfied that the applicant had injuries or a condition

consistent with those of a victim of domestic violence;

25

(h)   

an undertaking given to a court by the alleged perpetrator of the

abuse that he or she will not approach the applicant who is the victim

of the abuse;

(i)   

a letter from a social services department confirming its involvement

in providing services to the applicant in respect of allegations of

30

domestic violence;

(j)   

a letter of support or a report from a domestic violence support

organisation; or

(k)   

other well-founded documentary evidence of abuse, such as from a

counsellor, midwife, school or witness.

35

Protection of children and family matters

15    (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”)

40

(removal of father’s parental responsibility);

(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);

45

(d)   

special guardianship orders under Part 2 of the 1989 Act;

(e)   

orders under section 33 of the Family Law Act 1986 (“the 1986 Act”)

(disclosure of child’s whereabouts);

(f)   

orders under section 34 of the 1986 Act (return of child);

 
 

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

149

 

(g)   

any other orders or procedures under an enactment relating to

children that are prescribed for the purposes of this paragraph.

           

Exclusions

      (2)  

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

Schedule.

5

           

Definitions

      (3)  

In this paragraph—

“abuse” means physical or mental abuse, including—

(a)   

sexual abuse, and

(b)   

abuse in the form of violence, neglect, maltreatment and

10

exploitation;

“adult” means a person aged 18 or over;

“child” means a person under the age of 18.

      (4)  

For the avoidance of doubt, no time limit shall operate in relation to any

evidence supporting an application for civil legal services under paragraphs

15

14 and 15.

Mediation in family disputes

16    (1)  

Mediation provided in relation to family disputes.

      (2)  

Civil legal services provided in connection with the mediation of family

disputes.

20

           

Exclusions

      (3)  

Sub-paragraphs (1) and (2) are subject to the exclusions in Part 2 of this

Schedule, with the exception of paragraph 11 of that Part.

      (4)  

But the exclusions described in sub-paragraph (3) are subject to the

exception in sub-paragraph (5).

25

      (5)  

The services described in sub-paragraph (2) include services provided in

relation to conveyancing, but only where—

(a)   

the services in relation to conveyancing are provided in the course of

giving effect to arrangements for the resolution of a family dispute,

and

30

(b)   

services described in that sub-paragraph or sub-paragraph (1) (other

than services in relation to conveyancing) are being or have been

provided in relation to the dispute under arrangements made for the

purposes of this Part of this Act.

      (6)  

Sub-paragraphs (1) and (2) are subject to the exclusion in Part 3 of this

35

Schedule.

           

Definitions

      (7)  

For the purposes of this paragraph—

(a)   

a dispute is a family dispute if it is a dispute between individuals

about a matter arising out of a family relationship between the

40

individuals,

(b)   

there is a family relationship between two individuals if they are

associated with each other, and

(c)   

“associated” has the same meaning as in Part 4 of the Family Law Act

1996 (see section 62 of that Act).

45

 
 

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

150

 

      (8)  

For the purposes of this paragraph—

(a)   

matters arising out of a family relationship include matters arising

under a family enactment, and

(b)   

(subject to paragraph (a)) the Lord Chancellor may by regulations

make provision about when matters arise out of a family

5

relationship.

      (9)  

In this paragraph—

“child” means a person under the age of 18;

“family enactment” has the meaning given in paragraph 14.

Children who are parties to family proceedings

10

17    (1)  

Civil legal services provided to a child in relation to family proceedings—

(a)   

where the child is, or proposes to be, the applicant or respondent;

(b)   

where the child is made a party to the proceedings by a court under

rule 16.2 of the Family Procedure Rules;

(c)   

where the child is a party to the proceedings and is conducting, or

15

proposes to conduct, the proceedings without a children’s guardian

or litigation friend in accordance with rule 16.6 of the Family

Procedure Rules.

           

Exclusions

      (2)  

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

20

Schedule.

           

Definitions

      (3)  

For the purposes of this paragraph—

(a)   

proceedings are family proceedings if they relate to a matter arising

out of a family relationship,

25

(b)   

there is a family relationship between two individuals if they are

associated with each other, and

(c)   

“associated” has the same meaning as in Part 4 of the Family Law Act

1996 (see section 62 of that Act).

      (4)  

For the purposes of this paragraph—

30

(a)   

matters arising out of a family relationship include matters arising

under a family enactment, and

(b)   

(subject to paragraph (a)) the Lord Chancellor may by regulations

make provision about when matters arise out of a family

relationship.

35

      (5)  

In this paragraph—

“child” means a person under the age of 18;

“family enactment” has the meaning given in paragraph 14.

Forced marriage

18    (1)  

Civil legal services provided in relation to forced marriage protection orders

40

under Part 4A of the Family Law Act 1996.

           

Exclusions

      (2)  

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

Schedule.

 
 

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

151

 

EU and international agreements concerning children

19    (1)  

Civil legal services provided in relation to—

(a)   

an application made to the Lord Chancellor under the 1980 European

Convention on Child Custody for the recognition or enforcement in

England and Wales of a decision relating to the custody of a child;

5

(b)   

an application made to the Lord Chancellor under the 1980 Hague

Convention in respect of a child who is, or is believed to be, in

England and Wales;

(c)   

the recognition or enforcement of a judgment in England and Wales

in accordance with Article 21, 28, 41, 42 or 48 of the 2003 Brussels

10

Regulation.

           

Exclusions

      (2)  

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

Schedule.

           

Definitions

15

      (3)  

In this paragraph—

“the 1980 European Convention on Child Custody” means the

European Convention on Recognition and Enforcement of Decisions

concerning Custody of Children and on the Restoration of Custody

of Children which was signed in Luxembourg on 20 May 1980;

20

“the 1980 Hague Convention” means the Convention on the Civil

Aspects of International Child Abduction which was signed at The

Hague on 25 October 1980;

“the 2003 Brussels Regulation” means Council Regulation (EC)

No. 2001/2003 of 27 November 2003 concerning jurisdiction and the

25

recognition and enforcement of judgments in matrimonial matters

and the matters of parental responsibility.

      (4)  

For the purposes of this paragraph, an application is made to the Lord

Chancellor if it is addressed to the Lord Chancellor or transmitted to the

Lord Chancellor in accordance with section 3 or 14 of the Child Abduction

30

and Custody Act 1985.

EU and international agreements concerning maintenance

20    (1)  

Civil legal services provided in relation to an application under the

following for the recognition or enforcement in England and Wales of a

maintenance order—

35

(a)   

the 1968 Brussels Convention;

(b)   

the 1973 Hague Convention;

(c)   

the 1989 Lugano Convention;

(d)   

the 2000 Brussels Regulation;

(e)   

the 2007 Lugano Convention.

40

      (2)  

Civil legal services provided in relation to an application under Article 56 of

the EU Maintenance Regulation (applications relating to maintenance

decisions).

      (3)  

Civil legal services provided to an individual in relation to proceedings in

England and Wales relating to the recognition, enforceability or enforcement

45

of a maintenance decision in circumstances in which the individual falls

 
 

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

152

 

within Article 47(2) or (3) of the EU Maintenance Regulation (parties who

benefited from free legal aid etc in Member State of origin).

           

Exclusions

      (4)  

Sub-paragraphs (1) to (3) are subject to—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

5

paragraph 11 of that Part, and

(b)   

the exclusion in Part 3 of this Schedule.

           

Definitions

      (5)  

In this paragraph—

“the 1968 Brussels Convention” means the Convention on jurisdiction

10

and the enforcement of judgments in civil and commercial matters

(including the Protocol annexed to that Convention) signed at

Brussels on 27 September 1968;

“the 1973 Hague Convention” means the Convention on the

recognition and enforcement of decisions relating to maintenance

15

obligations concluded at The Hague on 2 October 1973;

“the 1989 Lugano Convention” means the Convention on jurisdiction

and the enforcement of judgments in civil and commercial matters

(including the Protocols annexed to that Convention) opened for

signature at Lugano on 16 September 1988 and signed by the United

20

Kingdom on 18 September 1989;

“the 2000 Brussels Regulation” means Council Regulation (EC) No. 44/

2001 of 22 December 2000 on jurisdiction and the recognition and

enforcement of judgments in civil and commercial matters;

“the 2007 Lugano Convention” means the Convention on jurisdiction

25

and enforcement of judgments in civil and commercial matters,

between the European Community and the Republic of Iceland, the

Kingdom of Norway, the Swiss Confederation and the Kingdom of

Denmark signed on behalf of the European Community on 30

October 2007;

30

“the EU Maintenance Regulation” means Council Regulation (EC) No.

4/2009 of 18 December 2008 on jurisdiction, applicable law,

recognition and enforcement of decisions and co-operation in

matters relating to maintenance obligations;

“maintenance order”, in relation to a convention or regulation listed in

35

this paragraph, means a maintenance judgment within the meaning

of that convention or regulation.

Judicial review

21    (1)  

Civil legal services provided in relation to judicial review of an enactment,

decision, act or omission.

40

           

General exclusions

      (2)  

Sub-paragraph (1) is subject to—

(a)   

the exclusions in Part 2 of this Schedule, with the exception of

paragraphs 1, 2, 3, 4, 5, 6, 8, 12, 15 and 15 of that Part, and

(b)   

the exclusion in Part 3 of this Schedule.

45

           

Specific exclusion: benefit to individual

      (3)  

The services described in sub-paragraph (1) do not include services

provided to an individual in relation to judicial review that does not have

 
 

 
previous section contents continue
 

© Parliamentary copyright
Revised 22 March 2012