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Scottish Government submission 15 December 2021

PE1917/A – Provide full legal aid to all parent's fighting for access to their children

Publicly funded legal assistance (‘legal aid’) allows people to pursue or defend their rights or pay for their defence when they could not otherwise afford to do so.

In order to target funding appropriately, when someone applies for legal aid, the application is subject to statutory tests which cover the merits of the case and the means available to the applicant. These tests allow the scope of legal aid to remain one of the most inclusive in Europe and the Scottish Government is committed to ensuring that legal assistance continues to be available to all those facing issues within that wide scope.

In our Programme for Government we committed to engage with the legal professionals and other stakeholders to review the Legal Aid system, and to introduce a Legal Aid Reform Bill in this Parliament, ensuring that the system is flexible, easy to access and meets the needs of those who use it.

The Scottish Government consulted on legal aid reform in 2019 and has stated its willingness to take forward supported recommendations that will deliver an enhanced system of legal aid across Scotland. The 75% of respondents to that consultation agreed that those who could afford to make a contribution to their legal advice should continue to do so - Legal aid reform: consultation analysis - gov.scot (www.gov.scot).

There are a large number of cases in the courts which relate to child contact and residence.  Table 5 in the Statistical Bulletin Civil Justice Statistics 2019/2020 provides information on family procedure cases in the courts, including in relation to parental responsibilities and rights: Civil justice statistics in Scotland: 2019-2020 - gov.scot (www.gov.scot) .  The number of cases relating to child contact and residence means that providing legal aid without a means test for those seeking these court orders would have a considerable impact on the legal aid budget.

Between 2016 and 2020 the average annual expenditure on Advice and Assistance and Assistance by Way of Representation for contact cases was £2,319,400. During the same time period average annual expenditure on Civil legal aid for contact was £8,790,400, with an average case cost of £3,487.

Current data from the Scottish Legal Aid Board (SLAB) shows that the majority of refusals relating to any Civil legal aid application is based on merit rather than means.

It is incumbent on the SLAB to investigate any representations querying the granting of legal aid to an opponent. This is often due to perceived unreasonableness or delaying tactics on the part of the assisted person. On investigation SLAB often discover that those representations are due to frustration by the non-assisted party rather than the actions of the opponent themselves. There are no barriers to anyone making an application for civil A&A, ABWOR, or legal aid. If someone believed they were ineligible based on either their income or capital they can request a review of the position by setting out why SLAB should disregard the appropriate element of their income or capital. Each case is considered on their own individual set of circumstances.

If legal aid without a means test were granted for those seeking contact, it seems inevitable that legal aid without a means test would have to be granted to those opposing the granting of a contact order as well.   This would again increase pressure on the legal aid budget.

In addition, as the Statistical Bulletin notes in paragraph 3.2 Civil justice statistics in Scotland: 2019-2020 - gov.scot (www.gov.scot), family law cases may have multiple craves and may, as a result, be a about more than one issue – for example, the pursuer may be seeking divorce and contact with their children.   If free legal aid were granted for child contact, this would raise questions about whether free legal aid would have to be granted for any family law case which included contact and other issues such as divorce: again, this would increase pressures on the budget.

The petitioner mentions child contact centres.  The Scottish Government does provide resources to Relationships Scotland to support the operation of these centres.  In addition, in some cases the legal aid budget may already be meeting costs in relation to centres.  This Business and Regulatory Impact Assessment, produced in relation to Covid-19 regulations, provides more information: The Health Protection (Coronavirus) (Restrictions and Requirements) (Miscellaneous Amendments) (Scotland) (No. 2) Regulations 2021 (legislation.gov.uk)  [see under Legal Aid Impact Assessment].

The Scottish Government recognises the importance of child contact cases and continues to take steps to implement the Children (Scotland) Act 2020 Children (Scotland) Act 2020 (legislation.gov.uk) and the Family Justice Modernisation Strategy Family Justice Modernisation Strategy - gov.scot (www.gov.scot) .