Salford Children's Services Procedures Manual Salford City Council website
Greater Manchester SCB Procedures
Greater Manchester SCB Procedures Greater Manchester SCB Procedures

1.6.3 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and when Children’s Services receive a Request to Evidence Domestic Violence and Abuse

SCOPE OF THIS CHAPTER

This chapter advises of the responsibility Children’s Services and partner agencies have in responding to requests for information/confirmation from parents who have suffered domestic violence and abuse or where children have been subject to child protection concerns and who are applying for Legal Aid.

Legal Aid is no longer available for private Law cases, except for those who are most vulnerable.

Nevertheless, it remains important that the Data Protection Act is respected and a balance regarding this is clearly required.

This chapter was introduced into the manual in October 2014.


Contents

  1. Introduction
  2. The Starting Point
  3. Types of Evidence
  4. What will the Individual Specifically Want?
  5. Legal Funding
  6. MARAC
  7. Confirming Injuries or a Condition Consistent with Domestic Violence
  8. Evidence from the Police

    Appendix A: Request to Social Services for evidence of an assessment of domestic violence

    Appendix B: Social Services response to request for evidence of domestic violence

    Appendix C: Social Services response to request for evidence of child abuse assessment or child protection plan


1. Introduction

The Legal Aid, Sentencing, Punishment of Offenders Act 2012 ("LASPO") received Royal Assent on 1st May 2012 and came into effect on 1st April 2013 contained a new framework for the legal aid scheme from the 1st of April 2013. The key focus in the scheme is on providing legal aid for the most vulnerable, and legal aid will no longer be available for private family law cases, which cover matters arising from a separation or divorce, (mainly child contact issues, residence issues - now dealt with under Child Arrangements Orders - and the division of assets).

There is, however an exception for victims of Domestic Violence and Abuse. The Legal Aid Agency will require evidence of domestic violence and abuse in order to fund legal aid in these types of cases. This means that local authorities and some of our partner agencies will be contacted to provide evidence if a person is seeking legal aid and they are claiming to be a victim of domestic violence from their partner. Additionally, in relation to children - evidence may be sought if the parent is stating that the child was assessed by social services department as being, or at risk of being, a victim of child abuse by the perpetrator or asking for confirmation that a Child Protection Plan was put in place to protect the child from abuse or risk of abuse by the perpetrator.

There is a serious risk that if you do not follow a process of providing the right evidence that you may breach a person’s data protection by disclosing too much information.


2. The Starting Point

On The Ministry of Justice (MoJ) website it tells an individual that:

“If you are a victim of domestic violence and are divorcing or separating from an abusive partner you can get legal aid to help. This can be help with the divorce or things such as child contact or how to share money or property. To get legal aid you must be able to give your solicitor some evidence that you have been a victim of domestic violence by your partner. There are many forms of domestic violence and it is not just about physical violence.”

“When a child is at risk of abuse from a partner - You can get legal aid to help with issues such as child contact or removal of a father’s or mother's Parental Responsibility, but you must be able to give your solicitor some evidence that child abuse has taken place.”


3. Types of Evidence

Types of evidence an individual can request to show the abuse has taken place:

  • Criminal conviction;
  • Police caution;
  • Ongoing criminal proceedings;
  • Protective injunction;
  • An undertaking given in place of a protective injunction;
  • Letter from a Multi Agency Risk Assessment Conference (MARAC);
  • Finding of fact, by a court;
  • Letter from social services;
  • Letter from a GP, doctor, nurse, midwife or healthcare professional;
  • Letter from a domestic violence refuge.

Under each category of evidence there are standard letters for individuals to complete and send to the relevant agency when they are seeking evidence.

This guidance note will deal with requests to social services and how to reply and requests to MARAC and the police (GMP).

Because of the issue of potential breach of data protection by giving the wrong or too much information, you should ensure that you can where possible sign post service users to complete the standard letter relevant to your agency when they are requesting the evidence. The additional reason for the best practice of always using the standard letter process is because this will ensure (1) only the relevant information is requested (2) we give only the right information in response (3) with these two processes combined, the person is likely to have a smoother and more timely process of applying for public funding since the right and relevant information is going to be presented by them to the Legal Aid Agency.

The evidence that is required in order for an application for legal aid to be made in these matters is prescribed in the Civil Legal Aid (Procedure) Regulations 2012. Regulation 33 deals with the evidence relating domestic violence and Regulation 34 with evidence relating to child protection. Because the forms of evidence are prescribed by regulation there is no discretion for the Legal Aid Agency to accept other forms of evidence or for the requirement to be waived in particular cases. Any application for legal aid for the private law children and finance matters set out in paragraphs 12 and 13 of Part 1, Schedule 1 of LASPO must satisfy one of the prescribed evidence requirements.

Below are the web addresses to the regulations:

The Civil Legal Aid (Procedure) Regulations 2012 - Regulation 33

The Civil Legal Aid (Procedure) Regulations 2012 - Regulation 34


4. What will the Individual Specifically Want?

If social services have assessed the individual in the last two years as being at risk of domestic violence and abuse by an ex-partner, then this can be used as evidence. They will need a copy of the assessment showing both their name and their ex-partner’s name as the abuser.

If they do not have a copy, or it does not have the right information on it, then they are advised by the MoJ to complete this social services template letter and send it to their local social services department.

That standard letter is set out at Appendix A: Request to Social Services for evidence of an assessment of domestic violence.


5. Legal Funding

If Children's Services are involved and a party is looking to secure legal funding, they will need:

“(a) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, the child was assessed as being, or at risk of being, a victim of child abuse by B (or a copy of that assessment);

(b) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, a child protection plan was put in place to protect the child from abuse or a risk of abuse by B (or a copy of that plan);”[1]

The Director of Legal Aid Casework guidance on evidence requirements for private family law matters has a guidance document “Evidence requirements for private family law matters.” Paragraph 2.55 to 2.57 and paragraph 3.29 to 3.34 detail the evidence required from social services. Please see The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 - Evidence Requirements for Private Family Law Matters document, which also sets out responses may be provided by email - if considering responding by email please ensure you have strictly complied and adhered to the Council policy on sending emails.

How should you reply?

Of course, when receiving a letter which is not a standard letter, then always be cautious of ensuring you respond accordingly, accurately and proportionately to what is being asked. Beware, those solicitors/individuals who you have reason to believe are on a “fishing expedition.” If in doubt, consult with your Manager.

Additionally, where you have already provided individuals with information which by its very nature of the document shared e.g. Case Conference Minutes evidences the domestic violence and abuse; rather than spends duplicate time in providing a further response, if appropriate; refer them to what they have already been given.

If receiving a letter from a solicitor, again, if their client has already been given the information then, if appropriate, respond confirming that this is the case. Sometimes, it’s a fine line between being able to direct elsewhere and by doing so just creating more correspondence than if you had provided the information again. You will have to probably consider this on case by case basis and knowledge of the family held etc.

The evidence could also be potentially provided from another source e.g. Health, or via the Courts, and it might be appropriate to divert the requester to that source.

Apart from MARAC and some of our other multi agency partners, the police and in Manchester, Greater Manchester Police, are well equipped in dealing with these requests with a specific website with guidance for individuals to access (see below).

Best practice in responding

In dealing with these requests the MoJ provides two standard letter responses for you. Please see Appendix B: Social Services response to request for evidence of domestic violence and Appendix C: Social Services response to request for evidence of child abuse assessment or child protection plan.

Please use one of these standard letters.

See The Ministry of Justice website for information on Legal aid for family matters.

[1] In this regulation - “child abuse offence” has the meaning given in the document published by the Lord Chancellor for that purpose under section 2 of the Act; “protective injunction” has the meaning given in regulation 33(3); and “relevant” means -
(a) for the purpose of paragraph (2)(a), (b) and (c) that the conviction, caution or criminal proceedings identifies B as being convicted of, cautioned with or charged with the child abuse offence; and
(b) for the purpose of paragraph (2)(d), that the protective injunction
(i) identifies B as the respondent; and
(ii) is made for the protection of the child who is or would be the subject of the order to which the application relates.


6. MARAC

If MARAC are contacted they will be asked to provide:

“If a MARAC has made a plan to protect you from your ex-partner in the last two years then this can be used as evidence for legal aid.

You will need a letter from the MARAC Chairman which confirms that they have made a plan to protect you from your ex-partner within the last two years.

Either contact your local police’s public protection unit by phone/email or complete and send the MARAC template letter.”


7. Confirming Injuries or a Condition Consistent with Domestic Violence

From a doctor or nurse confirming injuries or a condition consistent with domestic violence:

“If a doctor (including a GP), nurse, midwife or health visitor saw you in the last two years because you had injuries or a condition from domestic violence and abuse caused by your ex-partner then this can be used as evidence for legal aid. A ‘condition’ can include mental or psychological conditions, such as depression, as well as physical conditions.

You will need a letter from the doctor, nurse, midwife or health visitor who saw you that confirms that when they examined you, you had a condition that was consistent with domestic violence. To get a copy of a letter:

  • Complete a Medical Evidence template letter;
    1. As much as possible and send it to the place where you were seen, addressing it to the health professional you saw;
    2. If you do not know their name, or they no longer work there, you should contact your GP who will have your medical notes and will be able to advise you;
    3. You may be asked to pay a fee for the letter by the health professional.


8. Evidence from the Police

Greater Manchester Police are able to provide with evidence of:

  • A Police caution for a domestic violence offence issued within the last 2 years;
  • On-going criminal proceedings for a domestic violence offence in which you are the victim;
  • On-going criminal proceedings for child abuse in which your child is a victim;
  • Evidence of being subject to a Multi-Agency Risk Assessment Conference (MARAC) plan within the last 2 years;
  • Evidence of there having been a Domestic Violence Protection Order (DVPO) issued within the past 2 years.

Individuals are asked to complete the form attached via the link on the website and return together with the approved proof of identity, (please see guidance on the application form for more information on completing the form and acceptable forms of ID), by any of the following methods.

GMP will endeavour to respond within 10 working days (email or fax will generate the quickest response):

Email to: CRU.CareAndFamilySection@gmp.pnn.police.uk
or by post to: Information Services, Criminal Records Unit, Care And Family Section, Openshaw Complex, Lawton Street, Manchester M11 2NS
or by fax to: 0161 855 2260.

Greater Manchester Police are unable to provide evidence of:

  • Criminal convictions for a domestic violence offence;
  • Evidence of a protective injunction (with the exception of a dvpo);
  • Evidence of an undertaking given in place of a protective injunction;
  • Evidence of a finding of fact of domestic violence by a court;
  • A letter from a doctor or nurse confirming injuries or a condition consistent with domestic violence;
  • Evidence from social services confirming domestic violence and abuse; or
  • Evidence from a domestic violence support organisation confirming a 24-hour stay in a refuge due to domestic violence.

If the individual requires evidence of the type listed above, they are signposted to see the template letters and guidance available on the Ministry of Justice's website.

See also: Greater Manchester Police website.

GMP will not provide information if the criminal court process resulting in conviction has ended and therefore individuals will need to contact the Courts directly e.g. Crown Court for a Certificate of Conviction. The Courts are fully aware of this already and will accept requests. The request for a copy of the court record may attract a fee to be paid.


Appendices

Appendix A: Request to Social Services for evidence of an assessment of domestic violence

Appendix B: Social Services response to request for evidence of domestic violence

Appendix C: Social Services response to request for evidence of child abuse assessment or child protection plan

End