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
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