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Statutory Instruments

2023 No. 150

Legal Aid And Advice, England And Wales

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Made

7th February 2023

Coming into force in accordance with article 3

The Lord Chancellor makes this Order in exercise of the powers conferred by sections 9(2), 11(1), 12(2), 12(3)(e), 12(3)(g), 14(h), 21(2)(b), 41(1)(a), 41(2)(b) and 41(3)(c) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012( 1 ).

In making articles 4 to 7 of this Order, in accordance with section 11(2) to (5) of that Act, the Lord Chancellor—

(a) has considered the circumstances in which it is appropriate to make civil legal services available under Part 1 of the Act and, in particular, the extent to which the criteria ought to reflect the factors set out in section 11(3) of the Act;

(b) has sought to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under Part 1 of the Act for the form of service which in all the circumstances is the most appropriate having regard to the criteria; and

(c) is satisfied that the criteria reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings.

A draft of this Order was laid before Parliament in accordance with section 41(6) of the Act and approved by resolution of each House of Parliament.

Citation

Extent

2. This Order extends to England and Wales only.

Commencement

3. —(1) This Order comes into force on 1st March 2023, subject to paragraphs (2) and (3).

(2) The following provisions come into force on 1st May 2023—

(a) article 4(1) and (2);

(b) articles 5(2) and 6(3) so far as they insert the definition of “parental guardianship case” ;

(c) article 5(4), (5) and (8);

(d) article 6(2) so far as it inserts new sub-paragraph (db); and

(e) article 7(2).

(3) Articles 4(3), 7(3)(a) and 8 come into force on the first day on which a provision of Part 3 of the Domestic Abuse Act 2021( 2 ) (except a power to make regulations) comes into force, including where that provision is brought into force for a specified purpose or in relation to a specified area under section 90 of that Act.

(2) After paragraph 1 (care, supervision and protection of children) insert—

“ Special Guardianship

1A. (1) Civil legal services provided in relation to special guardianship orders as defined in section 14A of the Children Act 1989 ( 3 ) .

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule. ” .

(3) In paragraph 11 (family homes and domestic violence)—

(a) after sub-paragraph (1) insert—

“ (1A) Civil legal services provided in relation to—

(a) an application for a domestic abuse protection order under section 28 of the Domestic Abuse Act 2021;

(b) proceedings under section 31(2) or (7) of that Act so far as those proceedings relate to a domestic abuse protection order;

(c) an application to vary or discharge a domestic abuse protection order made under section 28 or 31 of that Act. ” ;

(b) after sub-paragraph (3) insert—

“ (3A) Sub-paragraph (1A) is subject to the exclusions in Parts 2 and 3 of this Schedule. ” .

(2) In regulation 2 (interpretation) at the appropriate place insert—

“ “ parental guardianship case ” means matters described in paragraph 1A of Part 1 of Schedule 1 to the Act (special guardianship) to the extent that the individual to whom civil legal services may be provided—;

(a)

is the parent of, or has parental responsibility for, the child who is or would be the subject of the order; and

(b)

opposes the order,

but does not include appeals from final orders made under section 14A of the Children Act 1989;

“ parental placement and adoption case ” means matters described in paragraph 1(1)(i) of Part 1 of Schedule 1 to the Act (care, supervision and protection of children) to the extent that they relate to a placement order or an adoption order under section 21 or 46 of the Adoption and Children Act 2002 ( 5 ) where the individual to whom civil legal services may be provided—

(a)

is the parent of, or has parental responsibility for, the child who is or would be the subject of the placement order or, as the case may be, the adoption order; and

(b)

opposes the placement order or, as the case may be, the adoption order,

but does not include appeals from final orders made under either of those provisions of the Adoption and Children Act 2002;

“ parental responsibility ” has the same meaning as in the Children Act 1989; ”

(3) In regulation 2 (interpretation), in the definition of “public law children case”, in sub-paragraph (a) after “1989 case”, insert “or a parental placement and adoption case” ;

(4) In regulation 2 (interpretation), in the definition of “family dispute”, after sub-paragraph (a) insert—

“ (aa) paragraph 1A (special guardianship); ” .

(5) In regulation 2 (interpretation), in the definition of “private law children case”, immediately before sub-paragraph (a) insert—

“ (za) paragraph 1A (special guardianship) to the extent that—

(i) the matter is not a parental guardianship case; and

(ii) the matter does not fall within paragraph 1(2) of Part 1 of Schedule 1; ” .

(6) In—

(a) the heading to regulation 26 (public law children cases and special Children Act 1989 cases), after “public law children cases” insert “, parental placement and adoption cases” ;

(b) regulation 26, after “public law children cases” insert “, parental placement and adoption cases” .

(7) In—

(a) the heading to regulation 65 (criteria for determinations for full representation in relation to special Children Act 1989 cases and certain cases relating to Transitional EU arrangements and international agreements), after “1989 cases” insert “, parental placement and adoption cases” ;

(b) regulation 65(2)—

(i) at the end of sub-paragraph (a) omit “or”;

(ii) after sub-paragraph (a) insert—

“ (aa) a determination for full representation in parental placement and adoption cases; or ” .

(8) In—

(a) the heading to regulation 66 (criteria for determinations for full representation in relation to public law children cases), after “public law children cases” insert “and parental guardianship cases” ;

(b) regulation 66(1), after “public law children case” insert “or a parental guardianship case” ;

(c) regulation 66(2), after “public law children case” insert “or a parental guardianship case” .

(2) In regulation 5(1) (exceptions from requirement to make a determination in respect of an individual’s financial resources) after sub-paragraph (d) insert—

“ (da) legal representation in a parental placement and adoption case;

(db) legal representation in a parental guardianship case; ” .

(3) In regulation 5(2), in the appropriate place insert—

“ “ parental guardianship case ” means matters described in paragraph 1A of Part 1 of Schedule 1 to the Act (special guardianship) to the extent that the individual to whom civil legal services may be provided—

(a)

is the parent of, or has parental responsibility for, the child who is or would be the subject of the order; and

(b)

opposes the order,

but does not include appeals from final orders made under section 14A of the Children Act 1989;

“ parental placement and adoption case ” means matters described in paragraph (1)(i) of Part 1 of Schedule 1 to the Act (care, supervision and protection of children) to the extent that they relate to a placement order or an adoption order under section 21 or 46 of the Adoption and Children Act 2002 where the individual to whom civil legal services may be provided—

(a)

is the parent of, or has parental responsibility for, the child who is or would be the subject of the placement order or, as the case may be, the adoption order; and

(b)

opposes the placement order, or as the case may be, the adoption order,

but does not include appeals from final orders made under either of those provisions under the Adoption and Children Act 2002;

“ parental responsibility ” has the same meaning as in the Children Act 1989; ” .

(2) In regulation 2 in the definition of “family dispute” after sub-paragraph (a) insert—

“ (ab) paragraph 1A (special guardianship); ” .

(3) In Schedule 1 (supporting documents: domestic violence)—

(a) after paragraph 6 insert—

“ 6A. A domestic abuse protection notice given under section 22 of the Domestic Abuse Act 2021 against B. ”

(b) in paragraph 11(a), after “in person” insert “, by telephone or by video conferencing” .

(c) in paragraph 22, omit the definition of “Immigration Rules”.

(a) at the end of sub-paragraph (ud) omit “and”;

(b) after sub-paragraph (ud) insert—

“ (ue) a hearing under section 26(2)(a) of the Domestic Abuse Act 2021 in relation to breach of a domestic abuse protection notice;

(uf) proceedings under section 31(3), (5) and (6) of the Domestic Abuse Act 2021 in relation to domestic abuse protection orders, including an application to vary or discharge an order made under those sections; ” .

Bellamy

Parliamentary Under Secretary of State

Ministry of Justice

7th February 2023

( 1 )

2012 c. 10 , to which there have been amendments not relevant to this Order.

( 3 )

1989 c. 41 , amended by 2002 (c. 38) sections 115 and 148. There are other amendments not relevant to this Order.

( 4 )

S.I. 2013/104 , to which there are amendments not relevant to this Order.

( 5 )

2002 c. 38 , to which there have been amendments not relevant to this Order.

( 6 )

S.I. 2013/480 , to which there are amendments not relevant to this Order.

( 7 )

S.I. 2012/3098 , to which there are amendments not relevant to this Order.

( 8 )

S.I. 2013/9 , to which there have been amendments not relevant to this Order.

Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (2023/150)

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