Private Children
Outcomes
1. Demonstrate an understanding of jurisdiction and funding issues in relation to a private
children law application.
2. Advise a client on the court’s powers in relation to children and how the court is likely to
exercise those powers.
3. Advise a client on the relevant procedure and draft the appropriate application.
Funding options and Legal Aid
Cases within the (a) Public law children proceedings
scope of LASPO 2012 (b) Cases involving the obtaining of protective injunctions (non-molestation orders, occupation
orders, forced marriage protection orders).
(c) Cases where a child under the age of 18 is the applicant, respondent or joined as a party
to the proceedings. Legal Aid will be available to the child
(d) Cases involving securing an order to prevent the unlawful removal of a child from the UK,
or to secure the return of a child unlawfully removed from the UK, or within the UK. This
one is not means tested, it is automatic
Private children, financial applications and divorce are outside the scope of LASPO,
Þ UNLESS the client can prove that she has been a victim of or is at risk of domestic
violence, or in children cases, the case is for the purpose of protecting child who would
otherwise be at risk of domestic abuse.
Definition of domestic abuse by Legal Aid, Sentencing and Punishment of Offenders Act
2012
Þ as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour,
violence or abuse (whether psychological, physical, sexual, financial or emotional)
between individuals who are associated with each other’. This is a wide definition but to
fall within it, the client must be able to provide evidence of the violence.
Requirement of Evidence of domestic violence under schedule 1 LASPO (also used to show a child is at
evidence of DV under risk of abuse).
schedule 1 • evidence of an arrest for domestic violence
• protective injunction having been made in the past
• report from a health professional that an examination showed evidence of violence
through injuries or conditions consistent with those of a victim of domestic violence.
Even if the firm does not undertake legal aid work, if a solicitor thinks someone’s case may fall
within the LASPO requirements, they must advise that they think the client may be eligible and
given before the client incurs private solicitor fees (Truex v Kitchin).
, Methods of funding family cases- page 18 onwards
CFA’s are not allowed in family law cases
Deferred payment of Legal Fees Sears Tooth Agreement
Where the firm will agree to defer the payment of legal fees until the end of
proceedings. At the end of proceedings the law firm is entitled to the payment from
the court to cover their costs and they will transfer the remaining funds to the client.
This is a flexible solution and alleviates immediate financial pressure and ensures
fees do not deter from taking legal action.
Risky but more probably where the client has capital but not a current income stream-
therefore, it is less common in reality
Court Order
ordering one party to pay the other’s costs. S.22ZA MCA 1973- enables the court to
make a legal services order requiring one party to pay an amount for the purposes of
enabling the other party to obtain legal services.
Court is hesitant to do this-This is only made if the court is satisfied that without the
order, the other party would not be able to obtain legal services. The court also has to
be satisfied that it would not be reasonable for the other party to obtain a bank loan or
enter into a sears tooth agreement.
Loans Þ from a bank
Þ from a friends
Þ discuss with the client that this may be an option and banks are willing to lend
for this context
Þ downfall is that the client needs to offer security- not always possible, and if
poor credit history
Litigation insurance Is an option, but often insurance companies are unwilling to provide insurance for the
family context due to the complexity of family cases and the inability to calculate an
accurate premium.
Premiums may be high to reflect the uncertainty and complexity of private family
matters.
unbundling Where the client selects which legal services it requires at the time and the solicitor
will have a limited retainer and can only act on what is instructed.
Þ Reduces fees
Þ Discrete acts of legal assistance under a limited retainer as opposed to a
traditional full retainer
Þ Instead of a solicitor acting from start to finish- the client is a litigant in person
but uses the solicitor for specific parts of work such as drafting documents or
advocacy, they are used when needed.
Þ Law Society practice note on unbundling- issues that may arise,
professional negligence where advice has been given on insufficient
knowledge as they have not been involved in the case from the start and the
client may not have all of the accurate knowledge. Thus, the solicitor must
have full knowledge before they can be satisfied that it is appropriate to act,
they should record every step in writing. You need to be satisfied the client is
capable of understanding and acting on your advice- thus need to ensure
they have the intellectual capacity and if not, refuse to act and recommend a
full retainer.
Þ Ensure everything is in writing to ensure there is no dispute with the client
about what the retainer will cover and record what the client is taking
responsibility for and what you, as the solicitor is responsible for- ENSURE
you stay cautious and only act and do things that are expressly agreed to
avoid acting beyond the limited retainer.
, Þ Minkin v Landsberg- the client sued her solicitor for professional
negligence, the solicitor acted only to draft the consent order that the client
had originally drafted, which the court rejected. Court decided that the terms
of the order were beyond the scope of the client’s retainer.
Outcomes
1. Demonstrate an understanding of jurisdiction and funding issues in relation to a private
children law application.
2. Advise a client on the court’s powers in relation to children and how the court is likely to
exercise those powers.
3. Advise a client on the relevant procedure and draft the appropriate application.
Funding options and Legal Aid
Cases within the (a) Public law children proceedings
scope of LASPO 2012 (b) Cases involving the obtaining of protective injunctions (non-molestation orders, occupation
orders, forced marriage protection orders).
(c) Cases where a child under the age of 18 is the applicant, respondent or joined as a party
to the proceedings. Legal Aid will be available to the child
(d) Cases involving securing an order to prevent the unlawful removal of a child from the UK,
or to secure the return of a child unlawfully removed from the UK, or within the UK. This
one is not means tested, it is automatic
Private children, financial applications and divorce are outside the scope of LASPO,
Þ UNLESS the client can prove that she has been a victim of or is at risk of domestic
violence, or in children cases, the case is for the purpose of protecting child who would
otherwise be at risk of domestic abuse.
Definition of domestic abuse by Legal Aid, Sentencing and Punishment of Offenders Act
2012
Þ as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour,
violence or abuse (whether psychological, physical, sexual, financial or emotional)
between individuals who are associated with each other’. This is a wide definition but to
fall within it, the client must be able to provide evidence of the violence.
Requirement of Evidence of domestic violence under schedule 1 LASPO (also used to show a child is at
evidence of DV under risk of abuse).
schedule 1 • evidence of an arrest for domestic violence
• protective injunction having been made in the past
• report from a health professional that an examination showed evidence of violence
through injuries or conditions consistent with those of a victim of domestic violence.
Even if the firm does not undertake legal aid work, if a solicitor thinks someone’s case may fall
within the LASPO requirements, they must advise that they think the client may be eligible and
given before the client incurs private solicitor fees (Truex v Kitchin).
, Methods of funding family cases- page 18 onwards
CFA’s are not allowed in family law cases
Deferred payment of Legal Fees Sears Tooth Agreement
Where the firm will agree to defer the payment of legal fees until the end of
proceedings. At the end of proceedings the law firm is entitled to the payment from
the court to cover their costs and they will transfer the remaining funds to the client.
This is a flexible solution and alleviates immediate financial pressure and ensures
fees do not deter from taking legal action.
Risky but more probably where the client has capital but not a current income stream-
therefore, it is less common in reality
Court Order
ordering one party to pay the other’s costs. S.22ZA MCA 1973- enables the court to
make a legal services order requiring one party to pay an amount for the purposes of
enabling the other party to obtain legal services.
Court is hesitant to do this-This is only made if the court is satisfied that without the
order, the other party would not be able to obtain legal services. The court also has to
be satisfied that it would not be reasonable for the other party to obtain a bank loan or
enter into a sears tooth agreement.
Loans Þ from a bank
Þ from a friends
Þ discuss with the client that this may be an option and banks are willing to lend
for this context
Þ downfall is that the client needs to offer security- not always possible, and if
poor credit history
Litigation insurance Is an option, but often insurance companies are unwilling to provide insurance for the
family context due to the complexity of family cases and the inability to calculate an
accurate premium.
Premiums may be high to reflect the uncertainty and complexity of private family
matters.
unbundling Where the client selects which legal services it requires at the time and the solicitor
will have a limited retainer and can only act on what is instructed.
Þ Reduces fees
Þ Discrete acts of legal assistance under a limited retainer as opposed to a
traditional full retainer
Þ Instead of a solicitor acting from start to finish- the client is a litigant in person
but uses the solicitor for specific parts of work such as drafting documents or
advocacy, they are used when needed.
Þ Law Society practice note on unbundling- issues that may arise,
professional negligence where advice has been given on insufficient
knowledge as they have not been involved in the case from the start and the
client may not have all of the accurate knowledge. Thus, the solicitor must
have full knowledge before they can be satisfied that it is appropriate to act,
they should record every step in writing. You need to be satisfied the client is
capable of understanding and acting on your advice- thus need to ensure
they have the intellectual capacity and if not, refuse to act and recommend a
full retainer.
Þ Ensure everything is in writing to ensure there is no dispute with the client
about what the retainer will cover and record what the client is taking
responsibility for and what you, as the solicitor is responsible for- ENSURE
you stay cautious and only act and do things that are expressly agreed to
avoid acting beyond the limited retainer.
, Þ Minkin v Landsberg- the client sued her solicitor for professional
negligence, the solicitor acted only to draft the consent order that the client
had originally drafted, which the court rejected. Court decided that the terms
of the order were beyond the scope of the client’s retainer.
