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Practice Guidance

Legal Services Commission Manual

Volume 3, Part C, Decision Making Guidance
Domestic Violence

3C-197

20.32 Domestic Violence and Abuse

A General Approach

1. Domestic violence proceedings are a priority area for the Lord Chancellor and the Commission. This is reflected in the Criteria at section 11.10 of the Funding Code which allow such cases to be funded more widely than most other family and non-family areas.

2. The Code Criteria in section 11.10 are not limited to any particular definition of domestic violence or abuse but instead cover all applications to fund legal representation in family proceedings seeking an injunction, a committal order or other orders for the protection of a person from harm (other than public law children proceedings). Funding is not limited just to persons who have suffered actual physical violence. The following guidance explains how the Criteria at section 11.10 will be applied to most types of proceeding, including applications for non-molestation orders under Part IV of the Family Law Act 1996. Guidance specific to other types of proceeding is set out at paragraphs 13 to 17 below.

3. When forms are submitted to the regional office to grant Legal Representation or when a grant of emergency representation by the supplier under devolved powers is reported to the regional office the issues set out below should be specifically addressed on the form to avoid unnecessary refusal of applications. Note that emergency cover should only be granted to take injunction proceedings where the applicant or relevant child is in imminent danger of significant harm. Significant harm is imminent if there is a real risk that it will occur before a substantive application can be processed and the matter brought before the court.

4. There is a discretion to waive the financial eligibility limits for the benefit of domestic violence victims seeking protection from the court from harm. The waiver extends eligibility by allowing the upper income limit, the gross income cap and the disposable capital limit to be waived. However any contribution from income and/or capital will not be waived. The Commission will, unless there are exceptional circumstances, exercise the discretion and suppliers can assume this when considering an application under devolved powers.

 

B Funding Criteria

Prospects of Success

5. Legal Representation will be refused if the prospects of obtaining the order sought in the proceedings are poor (Criterion 11.10.2). Funding can therefore only be granted where prospects are at least “borderline” as defined in the Code. In relation to non-molestation orders under Part IV the issue is whether the court is likely to be satisfied that the respondent has molested the other party or a relevant child and that an order is considered necessary by the court for the protection of that party or child having regard to all the circumstances, including the need to secure the health and safety and wellbeing of the applicant, of another party to the proceedings or of any relevant child. The prospects of obtaining an order are likely to be poor if, for example:

(a) the incidents complained of are of a trivial nature. However where there has been a history of incidents, the cumulative effect of those incidents may be taken into account, or;

(b) the conduct complained of is not likely to be repeated. If the conduct complained of took place more than three weeks prior to the application it will be necessary to set out in the application why it is considered that repetition is likely, for example if there has been a history of violent conduct.

Cost Benefit

6. Legal Representation will also be refused unless the likely costs are proportionate to the likely benefits of the proceedings, having regard to the prospects of obtaining the order sought and all other circumstances (Criterion 11.10.3). Although cost benefit must always be considered it is unlikely to be the sole decisive refusal ground in domestic violence proceedings. Where the incidents complained of are serious and the other considerations set out in this guidance are satisfied so that an order of the court is required to protect the client, it will usually not be difficult to show that the benefits of that protection will justify the costs of the application. The Code Criterion is deliberately expressed in wider terms than the private client test cost benefit criterion which applies to all other private law family proceedings.

Warning Letter

7. An application may be refused to cover court proceedings if no warning letter has first been sent to the respondent. However this is not an absolute rule. Practitioners should demonstrate that consideration has been given to whether a warning letter might endanger the client. A warning letter may be inappropriate for example if the applicant and respondent are still living under the same roof or if the threat to the applicant is serious and imminent or if receipt of a warning letter by the respondent may trigger further violence to the applicant or any relevant child before a protective order can be obtained. However in most other cases a warning letter, which can be issued under the Legal Help scheme, will be the appropriate first step. In such circumstances if no warning letter has been sent Legal Representation may be refused under Criterion 5.4.4.

 

Involvement of the Police

8. Domestic violence is a crime. Where the incidents complained of constitute an assault or other crime against the applicant the police should normally be notified and given an opportunity to deal with the respondent. If no attempt has been made to involve the police it may be appropriate to refuse Legal Representation under Criteria 5.4.3 or 5.4.4. However there may be good reason not to pursue criminal proceedings, for example where this might jeopardise the long term financial or other interests of the family. If so, or if there is reason to believe that the police will not be able to assist or if they are contacted but have failed to respond or to provide adequate assistance to protect the applicant and any relevant children, then a grant of Legal Representation may be appropriate.

Custody and Bail Conditions

9. If the proposed respondent is subject to a criminal investigation or proceedings and has been remanded in custody or is subject to bail conditions, it will not generally be appropriate to commence separate civil proceedings for an injunction (Code Criterion 5.4.5). Again, this is not an absolute rule. The extent of protection afforded to the applicant from the criminal proceedings must be considered in each case. If a prosecution and the protection of bail conditions are likely to finish shortly but the incidents complained of are continuing or are likely to continue then a grant of Legal Representation may be justified. However where there is a successful prosecution under the Protection from Harassment Act 1997 a restraining order under that Act is likely to continue. In such cases or where bail conditions or a remand in custody are likely to remain in force for some time it may not be necessary to grant Legal Representation for a civil injunction.

Capacity of the Respondent

10. Legal Representation is unlikely to be granted if any order obtained is unlikely to be enforceable on account of the mental incapacity or age of the respondent. See generally Re: H (respondent under 18: power of arrest CA [2001] 1FLR 641). An order may be obtained/enforced against an older minor. Re: H involved a 17 year old. Note however that Legal Representation is unlikely to be granted on the basis that even though an order is likely to be unenforceable there may be peripheral benefits to the client (such as encouraging future involvement by the police).

Respondents

11. Legal Representation to defend domestic violence injunction proceedings will also be considered under section 11.10 of the Code. However, prospects of success and cost benefit criteria are unlikely

 

http://www.legalservices.gov.uk/docs/cls_main/Decision_making_guidance_-_domestic_abuse.pdf

Permanent link to this article: http://operationfatherhood.org/moj/lsc/practice-guidance/