Special urgency guidance: family cases

Any application seeking special urgency cover to raise an action for residence will need to show that immediate court action is needed in regards to the residence of the child.

This could be because:

• The current arrangements are unsuitable or dangerous
• The status quo in relation to residence has changed

If there is an imminent risk of removal of the child from the existing primary carer, an early residence action may be appropriate to preserve the status quo.

You need to tell us what it is you want to do and the steps to be covered in the “work to be done” section of the application.

Applications seeking special urgency cover to raise an action seeking interim contact will generally only be granted:

• In the context of a variation of existing orders
• Where there has been a failure to obtemper a court order
• Where contact was taking place and this has been recently stopped (within the last two months) without good reason
• Where parties have only recently ended their relationship (within the last two months) and contact has been denied

Applications for special urgency cover where there has been a recent stopping of contact should detail:

• When contact last operated
• The reasons given for the cessation of contact if known
• Details of the extent of the contact previously in place

Where parties have only recently separated the application for special urgency cover should detail:

• When parties separated
• Reasons given for not allowing contact if known

Other than the situations above, it is unlikely that we will consider that the need to obtain an interim contact order prior to a decision being taken on the legal aid application is a matter that meets the test of special urgency.

A special urgency application will generally be approved where residence arrangements have changed resulting in your client being in breach of an existing order.

We will generally allow cover for variation where there are concerns about the welfare of the child. We are unlikely to give approval to do work urgently where your client is a parent who has an order for contact and simply wishes to vary this to gain more contact with the child.

Where your client is experiencing difficulty in obtaining contact which the court has awarded, we will usually grant special urgency cover for a minute for failure to obtemper, so long as it is shown that some effort has been made to resolve matters without litigation.  We will take into account the time over which contact has operated, and the number of sessions missed.

Where the court orders a child welfare report prior before legal aid is granted we will deal with any requests for special urgency cover for this work as expeditiously as possible.  If we are satisfied that interim orders are needed urgently, authorisation to cover the cost of such a report will usually be granted.

However, if we consider you have brought about an urgency where no difficulties would have arisen had you and your client waited for a decision on a legal aid application, we may not grant special urgency.

If the cost of the report is to be more than £3,000 excluding VAT you need to get approval from us for this cost using the sanction process as well as special urgency approval.

Risks where liability for the cost of child welfare reports changes during the case

We sometimes see situations where the court amends liability for the cost of a child welfare report after the report has been finalised.  The court will sometimes move the cost from one party to another, or distribute costs between the parties in a different way.

We have no power to approve unusually large expenditure or special urgency cover retrospectively.  The regulations make no provision for this.  Where a child welfare report is instructed by the court, and the party initially liable to meet the cost:

1. a) requires cover under the special urgency provisions; and/or
2. b) requires our prior approval because the total cost exceeds £3000 plus VAT

and the court pronounces a later interlocutor amending liability for the cost of the report so that it is apportioned differently between the parties, we cannot competently, and within the regulations that constrain us, retrospectively approve any additional cost under any applicable grant of civil legal aid for work on the report which has concluded. Without prior approval it is unlikely that any additional cost to an applicant can be met from the Fund.

Where the court amends liability, to place responsibility for payment of a report upon a person who, when the work was carried out, was not an assisted person with the appropriate approvals in place, there is a risk that the costs for which the person is newly found liable cannot be met from the Fund. This may be the case even if this person is an assisted person at the time when the court amends liability.

Where it is known in advance that a court is being invited to shift the liability for a child welfare report it is recommended that attention be given to the legal aid ramifications and requirements.  You should contact us beforehand to find out the steps which can be taken so that any issues are brought to the attention of the court before the order is made.

In terms of the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022, the Initial Case Management Hearing must be on the first suitable court day, not occurring sooner than 21 days or later than 49 days, after the last date of the notice lodging intention to defend.

It is likely that the date and time of the Initial Case Management Hearing will coincide with the first Child Welfare Hearing.

If the Initial Case Management Hearing and a Child Welfare Hearing are fixed for the same date and time, the work can be done without our prior approval under Regulation 18(1)(b), as long as the appropriate special urgency cover is in place for the Child Welfare Hearing under Regulation 18(1)(a) and (2).

However, where the Case Management Hearing is not fixed for the same date and time as a Child Welfare Hearing, you will need to apply for separate prior approval under Regulation 18(1)(b) for special urgency cover to attend the hearing.