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Revised guidance on legal aid for contact actions
Wednesday, Oct 21, 2015
New contact actions guidance - effective from 7 December 2015
We have recently examined the guidance we have issued about applications for legal aid to both pursue and defend contact actions. This work took place as part of both a holistic review of applications for civil legal aid where we examined all applications involved in any one case, rather than simply considering each individual application in isolation and our high cost case monitoring.
Our aim was to identify issues which can impact negatively on the parties’ ability to make progress to resolve the disputes. Where positions are entrenched and court disputes lengthened, this is unlikely to be in the best interests of the child (or children). It does not benefit any of the individuals involved in the process, the operation of the courts or the taxpayer.
We know that, in many cases involving contact disputes in the courts, both parties are funded by legal aid. In some applications for legal aid, it appeared that differences in parties’ views of the key issues involved in the dispute went beyond what might be viewed simply as different perceptions of events but rather raised issues that could impact on the court’s approach to contact including:
- Issues concerning extensive drug use and alcohol abuse;
- The involvement of Social Work Department in the children’s care arrangements; and
- Allegations of domestic abuse including a number of applications where criminal proceedings have been taken.
In addition, we found that in some applications very little attempt had been made to resolve matters by agreement, with the stances adopted by parties being unrealistic either in relation to the extent of the contact sought or in opposing all contact for little good reason. We also took into account the comments of Lord Reed in the Supreme Court case of NJDB –v- JEG and Another.
With these issues in mind, and with the aim of ensuring that the best interests of the child are at the forefront of applicants’ consideration about how they want to resolve their dispute, we identified changes that could be made to the guidance. We asked for and obtained comments on the proposed changes from:
- The Law Society of Scotland
- Family Law Association
- Sheriffs’ Association
- Families Need Fathers, and
- Scottish Women’s’ Aid.
We met with some of the organisations to discuss the issues in more detail and found that others held similar views about the need for everyone involved in contact cases to give careful consideration to resolving contact disputes in a way which is less damaging for the children and parties involved.
Following these discussions and feedback, we looked again at the guidance and have now completed our revised it in the Civil Legal Assistance Handbook available on our website.
The revised guidance is not intended to preclude the availability of civil legal aid for such disputes but rather is intended to ensure that public funding is only provided where: all reasonable attempts have been made to settle matters without success; and the issues to be considered merit the expenditure of several thousand pounds of public funds.
Summary of key changes
In Part IV, Chapter 4, paragraph 4.35 we have strengthened the second bullet point in relation to attempts made to resolve a dispute. The guidance now indicates we are unlikely to consider it reasonable to grant any application for civil legal aid from a party who has not engaged in genuine attempts to resolve the issue without litigation and who did not enter into such negotiations with a realistic view of what the possible terms of settlement of the dispute could be. This change is designed to avoid legal aid being made available where an applicant has entered into perfunctory negotiations only or who has asked for an excessive level of contact which is unrealistic having regard to any previous contact arrangement that there may have been (if any). It is also aimed at those who seek to oppose all requests for contact of any sort where there is little reasonable prospect of resisting all contact. The tone of any correspondence entered into will also be considered as this may impact on the likelihood of a successful negotiation.
The revised paragraph also states that in light of the fact that the welfare of the child is the court’s paramount consideration, any statement submitted with the application should not be a re-statement of the historical dispute between the parties or an assertion that because one party considers their stance is reasonable this is enough to support the welfare test. The statement must focus far more than is currently the case on what is in the best interests of the child.
The specific paragraphs on contact orders, paragraph 4.38 - if an applicant is seeking contact, and 4.39 - if an applicant wishes to defend a contact order, have been expanded to require more information about any lifestyle factors that may impact on the action and to provide information about whether mediation has been considered or attempted. The list of factors to be dealt with in an applicant’s statement reflects concerns that have arisen in work undertaken on high cost cases and in the holistic review about the inadequate disclosure of information in some applications to allow us decide whether it is reasonable to make public funding available taking into account all the facts that may apply.
The new guidance will be effective for all applications received from 7 December. However, any applications that you lodge from now should, wherever possible, comply with the revised guidance.
If you have any enquiries about the new guidance, please contact Catriona Whyte, Head of Legal Services – Civil and Children’s at email@example.com or on 0131 240 2088.
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