12 April 2022
Legal Aid Waiver available
For victims of Domestic Abuse in Children’s Proceedings
In February
2022, the Legal Services Agency introduced a discretionary waiver which will
now mean that victims of domestic abuse may be eligible to Legal Aid when
defending certain Children (NI) Order proceedings even if their financial
circumstances might otherwise mean that they are ineligible.
This new
waiver scheme is significant as it means that some victims of domestic abuse who
were having to pay privately to defend children’s proceedings issued before the
Courts by their perpetrator may now be entitled to Legal Aid.
The waiver scheme
will operate in similar terms to the Domestic Violence waiver available in
proceedings under the Family Homes and Domestic Violence (NI) Order 1998. As
such, there may be a contribution to be paid by the person applying, depending
on their financial circumstances
There are
certain conditions that a person will have to satisfy to be eligible to this Legal
Aid. In summary these are as follows:
1.
They
must be defending an application for one of the following types of Order:
a.
Contact
Order;
b.
Prohibited
Steps Order;
c.
Residence
Order; or
d.
Specific
Issue Order
2.
They must expressly seek the
exercise of the waiver from the Legal Services Agency
3.
They must provide evidence to
supports their request for Legal Aid on the basis that they are the victim of domestic
abuse. Examples of the evidence which will be accepted are as follows:
a.
Evidence
that the Applicant in children’s proceedings has received a conviction for
domestic abuse or a crime aggravated by domestic abuse against the Respondent
in children’s proceedings;
b.
Evidence
that the Applicant in children’s proceedings has received a conviction for a
crime of violent behaviour, including crimes of sexual violence and/or violence,
against the Respondent in the children’s proceedings;
c.
Evidence
that an inter-partes Non-Molestation Order or Occupation Order has been
considered and granted by a Judge against the Applicant in children’s
proceedings and in favour of the Respondent in children’s proceedings.
d.
Evidence
provided by the PSNI that the Respondent in the children’s proceedings has been
a reported victim of domestic abuse perpetrated by the Applicant in the
children’s proceedings;
·
Other
evidence providing an equivalent level of assurance that a person is eligible
for the waiver.
The waiver
scheme is good news for victims of domestic abuse who may now be eligible for Legal
Aid even if they do not look like they will be financially eligible. The waiver
applies to cases in the Family Proceedings Court, Family Care Centre and High
Court and there are different ways of assessing any contribution to legal aid
depending on the Court tier of the proceedings.
Any victim who
is currently defending Article 8 proceedings but who has not been deemed financially
eligible for Legal Aid may now wish to review their position in light of this
new scheme.
Guidance on
the new waiver can be found on the DOJ website “LSANI Guidance on Seeking
Domestic Abuse Waiver”
https://www.justice-ni.gov.uk/publications/lsani-guidance-seeking-domestic-abuse-waiver