Bach Commission recommends bringing range of family law cases back into civil legal aid

Commission advocates a new Right to Justice Act

In its final report the Bach Commission, which is supported by the Labour Party leadership and the Fabian Society,  calls on the government and other political parties to ensure minimum standards on access to justice are upheld through a new Right to Justice Act. The report will form part of the Labour Party's policy review.

The Commission, which has heard from more than 100 individuals and organisations over the past two years, has found that that cuts to legal aid have created a two-tier justice system where the poorest go without representation or advice.

The proposed Right to Justice Act will:

• Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
• Establish a set of principles that guide interpretation of this new right
• Establish a new body called the Justice Commission to monitor and enforce this new right.

To make the act a reality, the commission also sets out an immediate action plan for the government to: widen the scope of legal aid, with a focus on early legal help; reform the eligibility requirements for legal aid; replace the Legal Aid Agency with an independent body; and improve the public's understanding of the law.

In respect of family law, the Commission recommends: 

• The government restores legal aid for early legal help to pre-LASPO levels for all social welfare law and family law.
• All matters concerning legal support for children should be brought back within the scope of civil legal aid.
• Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court:

a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)
b) cases involving an application to remove a child from the jurisdiction
c) cases where there is local authority involvement in private law children proceedings
d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.

• The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.
• To read the report click here

CPS to issue first-ever guidance for prosecutors on handling male victims of sexual and domestic abuse

Olivia Rudgard, social affairs correspondent at The Telegraph informs us that there is now
guidance for dealing with male victims of abuse will be sent to prosecutors for the first time as the CPS says they need specific protection in the same way as LGBT and black and ethnic minority people.

Previously there had been no specialised guidance for prosecutors on dealing with male victims of crimes such as rape, sexual abuse and domestic violence.

Prosecutors hope the new documents will tackle attitudes which stop men coming forward for fear that they will be ignored and have their masculinity ridiculed.

While it says men have always been given equal footing with other victims, the document is the first time the CPS has directly addressed their issues.

It plans to update case studies and guidance to challenge myths and stereotypes and include the details of services which provide support for male victims.

Prosecutors will be sent information about the different issues faced by male victims, including the fact that boys are more likely to be sexually abused by "authority figures", while girls are more likely to be targeted by family members.

Boys who have experienced childhood abuse also tend to come forward at a younger average age of 13, compared to 16 for girls.

Forced-marriage and honour-based violence affects men too, the guidance will add, as they can be blamed for the behaviour of women or for not being masculine enough.

A spokesman said the CPS had "previously looked to develop guidance and information on issues
such as teenage relationship abuse, same sex abuse and older victim abuse.

For more information click here

Increase in care cases has created a crisis, agrees Lord Chief Justice

Lord Thomas’s final report reviews family court developments over last year

In his final annual report as Lord Chief Justice, Lord Thomas has agreed with the President of the Family Division, Sir James Munby, that the increase in care cases at a time of static judicial resources has created a crisis. 

In Section 6 of his report, devoted to family justice, he notes that between January and November 2016, the year-on-year increase in care cases averaged 20% on top of a similar scale of increase in 2015. Whilst the beginning of 2017 saw the rate of increase slowing, the trend is still upwards. There were 5,051 new public law applications in January to March 2017, up 5% on the equivalent quarter in 2016. Average case duration is beginning to move up again after a long and sustained fall, it now stands at 28 weeks after several quarters hovering around 27 weeks. 

The Lord Chief Justice notes the leading role taken by the judiciary in seeking means of controlling the rise in public law cases through the pilot of settlement conferences and its support of other initiatives such as PAUSE, currently being piloted by LIFT which seek to tackle the problems which drive families into public law proceedings.

Lord Thomas states that an amended Practice Direction 12J is expected to come into force during this month.

He also notes that a protocol is currently being developed to promote closer co-operation between the judges of the Family Courts of England and Wales and their colleagues in Scotland. The protocol will cover a number of issues of mutual interest including how to approach care cases with a cross-jurisdictional element. It is hoped that, in time, the provisions of the protocol will be further developed and extended to support co-operation on care cases across the whole of the UK.
For more information click here

Can I buy a house for my mum to live in rent-free?

An article in today's Guardian caught my eye, there are so many of us who would like to help their relatives, but (understandably) are unsure about whose advice to follow. It reads:-

Q My mum is 52 and lives on her own on a low income in the north of England. I rent and work in London and am fortunate enough to be on a fairly good income. My mum, however, is struggling, so two years ago I started covering her mortgage payments. She has approximately £90,000 equity in her home and an outstanding mortgage of £50,000. She earns only £18,000 a year.

Given that I am already covering the mortgage payments I am considering buying the house and letting her live in it rent free. The benefit being that she can then release the equity and pay off her credit cards and enjoy some of her hard-earned money.

Should we buy as joint tenants or tenants in common?

I live in a rented flat and don’t currently have a mortgage, so this would be my first mortgage. I have no immediate plans to buy a place for myself, although may consider buying in or around London with my partner in a few years.

I would really love to remove the financial burden from my mum, knowing she could then have a nest egg to enjoy.

I have been speaking to a financial adviser who has advised me that I cannot purchase mum’s house and let her live in it as I won’t be living there myself, and that I can’t get a buy-to-let mortgage as she is a close relative. But otherwise he hasn’t been very helpful and I’m not sure whether he is giving me sound advice.

I have been doing my own research but information is very hard to understand and I read conflicting things.

A Your financial adviser is right to say you can’t take out a residential mortgage for a property in which you won’t be living. He is also right – up to a point – that you can’t take out a conventional buy-to-let mortgage because you would be letting to a close relative.

But according to independent mortgage adviser Niche Advice, if you were already a homeowner it might be possible to take out what is referred to as a regulated or consumer buy-to-let mortgage. These allow applications for such mortgages to be assessed according to the same strict affordability rules set by the Financial Conduct Authority (FCA) for residential mortgages if the property is to be let to a close relative.

The FCA defines “close relative” as a spouse, civil partner, mother, father, brother, sister, child, grandparent or grandchild. (So in theory you could take out a standard buy-to-let mortgage if you planned to let to a cousin, uncle, aunt, nephew or niece.)

Should I renegotiate my offer price after survey points to problems?

With standard buy-to-let mortgages taken out purely for business purposes, which are not regulated by the FCA, applications can be assessed by looking at rental income alone. Typically, if you have a sufficiently large deposit and the rent can cover the mortgage repayment by 125% your application will be accepted.

According to Niche Advice, however, the “key driver” of the two lenders that offer regulated buy-to-let mortgage is applicants’ affordability rather than rental income, and they are likely to insist the mortgage is repayment rather than interest-only, in line with the rules for residential mortgages.

In addition, to be eligible for a regulated buy-to-let mortgage Niche Advice says the key criteria are:

• a minimum income of £25,000 excluding state pension and other benefits

• a deposit of 40%, all of which must come from you

• you must be an owner-occupier rather than renting yourself

• an ability to cover the buy-to-let mortgage out of earned income

• rental coverage of 125% of the mortgage payment.

Given these criteria, it seems unlikely that a regulated buy-to-let mortgage is an option for
you to buy your mother’s home. There may be a small silver lining in that cloud in that, if you
were able to take out a mortgage to buy your mother’s home and something happened to you that
meant you were unable to keep up repayments on it, you mother could be made homeless if the
property had to be sold.

For the full article click here