Public Funding for Family Law Cases

What is public funding?

Public funding (commonly known as legal aid) is available to some individuals who need to take legal advice and representation, but who cannot otherwise afford it. Legal aid has been severely restricted in recent years, and individuals today need to satisfy certain requirements, such as their income level, before they are awarded legal aid.

For family law clients, there are a number of levels of legal aid available. For each applicant where legal aid is potentially available, there is a ‘means’ and ‘merit’ test to determine eligibility. Public funding will only be given if there is a strong benefit to the client.

Under the means test, the current income limit is £2657 per month. If a person earns more than this, may will not be eligible for public funding.  In some of the levels of assistance there may also be further considerations.

The merits test looks at the likelihood of success of your case, the reasonableness of the costs, and whether a reasonable person would use their own money to pay for it.

Who administers the funding?

Public funding/legal aid is administered by the Legal Aid Agency (LAA). The LAA deals with both criminal and civil legal aid (family proceedings are civil proceedings). It also runs the Civil Legal Advice service which gives those eligible, help with some family related (and other) problems.

Levels of Assistance

The level of assistance available in family law cases is based on what type of work is being carried out by the solicitor and also on the current stage of the proceedings.

Legal Help

Legal help involves a fixed fee being awarded to a solicitor for work carried out.  Legal help allows a person to initially gain advice from a solicitor on a family law matter. This level would cover an initial meeting or a telephone call, and negotiations with the other side. This level does not cover court proceedings. Legal help is the minimum level of assistance which can be administered.

Family Mediation

This level of assistance means a solicitor can help with the negotiation with the other party through the use of mediation in an attempt to settle a family dispute. An assessment meeting will be carried out before the mediation process can take place to establish whether mediation is appropriate for the dispute. The process of mediation may be unsuitable for some types of dispute, and suitable for others. It is largely dependent on the facts and issues involved with in the case in question.

Family Help (lower form)

Family help (lower) is a fixed fee that covers work carried out before proceedings take place, including obtaining a consent order once a settlement of the dispute has been reached. It can be used for both public and private law cases. To qualify the dispute must involve a ‘significant family dispute’, ie. which could lead to proceedings if is unresolved. This level does not cover the issue of proceedings or cover the cost of representing a person in proceedings.

Family Help (higher)

This allows for a solicitor to be paid an hourly rate for the work they carry out, and covers where proceedings are issued between the parties. The higher level is only used when proceedings are absolutely necessary and all other attempts have been made to resolve the dispute. To qualify, there must be reasonable grounds to start proceedings.

Legal Representation

This covers the costs of preparing for trial, and for representing you in court or arranging for a barrister to represent you in the case. To qualify for Legal Representation, you must show that your case has a “prospect of success” and also that there is an element of a cost benefit.

What is the Statutory Charge?

Public funding awarded by the LAA is akin to a loan. The money awarded is public money, which means that the LAA has a duty to recover the money when possible. Therefore, it can make a claim on any money or property recovered from the proceedings in which legal aid was granted. This is the ‘statutory charge’. Under the statutory charge, you may have to repay the amount of public funded originally awarded to you.

Can I get Emergency Funding?

Sometimes, emergency public funding is required, for example, in cases involving child abuse or domestic violence. In these cases, the LAA can authorise urgent financial help on an application by your lawyer. To qualify, there must be an ‘interests of justice’ element, and the client must qualify under all the other relevant tests as are required for the others levels of assistance.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.