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 a Contact Order, Prohibited Steps Order, Residence Order or 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 required at (3) above  are as follows:

1. 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;
2. 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;
3. 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.
4. 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;
5. Other evidence providing an equivalent level of assurance that a person is eligible for the waiver.

Our Family Law Solicitor Emma Stratton comments: "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. 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.   

It may now also be prudent to encourage victims to report any abuse suffered by them to the PSNI as they may later need evidence from the police that they have been a reported victim of domestic abuse."

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.   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

For advice and assistance on any children's law matter, please arrange a free consultation by calling 028 9024 3901 or emailing Emma on estratton@fhanna.co.uk