Implementation of Legal Aid Changes
The Government's planned abolition of Public Funding for the majority of private law family and children cases (e.g. residence, contact and financial remedies on divorce) and Court proceedings arising out of those disputes, is due to be implemented in February 2012. From then, only if there is 'domestic violence' as defined in the new regulations (a more stringent test than the definition that has been set out in previous court cases), would the victim of that alleged domestic abuse be able to apply for Public Funding. The alleged perpetrator of the domestic violence will not be entitled to apply for Public Funding. The effect of this will be devastating for families and children, especially when the alleged abuser has no alternative than to 'cross-examine' the alleged victim in Court in disputed cases without having had the benefit of sound legal advice or representation. In cases where there are no allegations of 'domestic violence', the parties may reach agreements as to contact or residence without legal advice and in terms that a Court might have been unlikely to accept or the parties' lawyers unlikely to have approved, such as where there are risks to children that the parents do not appreciate or may even not be aware of. This could in many cases lead to children being harmed and greater intervensions by social services and the risk of children being removed from both parents.
Kate Gomery:
Get a Grip - Reform of Family Justice
06 July 2011
So, let's take stock. Over the last couple of months as family lawyers, we have had: the Family Proceedings Rules 2010, the Family Justice Review Interim Report, the Munro Report, the Private Family Law Representation Scheme, the Family Advocacy Scheme and the Legal Aid (etc) Bill. This week there was news that the newly appointed Adoption "tzar" has recommended to ministers that the whole adoption process be speeded up and dramatically altered in other ways.
What have I missed?
The problem with all this, is that despite virtually everyone agreeing that there is need for reform within the family justice system, there is currently so much "reform" being proposed, without any idea of a comprehensive overview, the effect is that no one really knows what's expected to happen (or when) with confusing, and sometimes contradictory, implications.
When most people say reform is needed, often what they mean is that the Courts, Cafcass, LSC, Local Authorities et al need increased funding and resources to make the basics of the current system more effective, streamlined and user-friendly. With the reform that's being suggested, the worst case scenario is that we will be left with a system which comprises a hotch-potch of procedures and legislation held together by an inadequate budget, which, more often than not, will have to be navigated by the parties themselves with no legal representation.
A good family justice system is one that supports families with practical and legal help at (what is often) the most traumatic times of their lives. The ideal resolution is, of course, one that ensures that the difficulties are addressed and resolved with as little conflict as possible. But the fact of the matter is we do not live in a world where most people are emotionally equipped on their own to deal in a practical and rational way with the implications of family breakdown.
I work in Liverpool (which, incidentally has the largest proposed cut to it's Legal Aid budget despite official figures showing it is the most deprived part of England) and many of my clients' backgrounds and circumstances mean that the prospect of them interacting in a civil and objective manner with their exes over such emotive issues as where their children should live and arrangements for contact, either within or outside of the court system, is simply not a realistic one.
Without patronising my clients, I simply cannot see how they will cope without legal support in applying for or responding to applications made through the courts. Crucially, I think that many of them are simply incapable of showing the courts the respect they expect and I suspect it will not become unusual to have hearings descend into all-out slanging matches.
The Government needs to take control of the situation, and soon. There needs to be a single body (with input from people with a real understanding of how the system operates) to collate and consider the recommendations of the various Reports, Reviews, Recommendations and Bills. If the system can't be improved without putting additional funds in (rather than taking them out) then that point needs to be rammed home to those at the very top as quickly and as clearly as possible.
Kate Gomery has recently qualified as a family law solicitor. She works at Heaney Watson in Liverpool where she is exposed to all types of family law work but particularly publicly funded family law cases. Prior to qualification Kate spent several years doing general crime and then serious fraud work. She trained at Pannone in Manchester.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
©2011 Jordan Publishing
Family legal aid cuts an attack on childhood and the family
News Release from Resolution
21 Jun 2011
Government plans to cut family legal aid represent an attack on childhood and the family, said family law association Resolution today as the Government published the response to its legal aid consultation.
Under the cuts, thousands of vulnerable parents going through the trauma of divorce and separation will be forced to struggle by without legal help – creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that harm their upbringing.
“Where there are serious problems between parents, stripping away affordable justice will force families into situations where children simply lose contact with one of their parents, which is wholly unacceptable in a civilized society,” said David Allison, Chair of Resolution.
“The cuts will also mean that, separated parents with primary responsibility for caring for the children may not be able to obtain a fair financial deal from the former partner.”
Under the planned cuts, large groups of vulnerable people will no longer be eligible for legal aid. The only option available to families who still qualify for legal aid will be mediation, which is a valuable non-court option but not suitable for all and requires both parties to voluntarily agree to take part.
“The Government seems determined to turn a deaf ear to the misery that these cuts could create for thousands of children and families. Not to mention the long term impact the cuts will have on wider society and the costs that will transfer to other state funded services as people develop other difficulties such as mental health issues, as they seek to work through these things on their own,” said David Allison.
“These cuts are clearly ill-considered and rushed. The consultation process has been the latest in a line of similar coalition government fiascos. It received an unprecedented 5,000 responses according to the Ministry of Justice’s own figures. It is inconceivable that these responses have been given full and proper consideration.”
The volume of responses to the consultation is not the only indicator that the proposals are deeply flawed. Both the Justice Select Committee and the Family Justice Review have expressed concerns about the Government’s plans.
The Justice Select Committee called on the Government to rethink its decision to use domestic abuse as the only means of accessing free legal advice and help, and the Government’s own Family Justice Review has warned of the potential impact on the courts of families forced to represent themselves.
“It will become virtually impossible for many struggling families to get legal aid when going through the pain of separation. For many, losing family legal aid will be a cruel and unaffordable blow,” said David Allison.
Resolution warns that the Government’s proposals could be the final nail in the coffin for many legal aid providers, leaving too few lawyers able to help the small numbers of vulnerable people who would still be protected by family legal aid.
The cuts are likely to create spiralling costs for taxpayers and chaos in the court system as increasing numbers of people, stripped of their right to legal aid and affordable justice, try to represent themselves.
Resolution is a group of over 5,500 family lawyers in England and Wales. Established 26 years ago, it promotes a non-confrontational, constructive approach to resolving family disputes. To find out more, visit www.resolution.org.uk.
Case studies demonstrating the sort of people who will be hurt by these proposals are available here.
Legal aid cuts fatally flawed
News Release from Resolution
14 Feb 2011
Coalition proposals set to create misery and administrative chaos at taxpayer's expense
Ill-considered, rushed and draconian Government proposals to cut legal aid risk creating devastating consequences for families and children. Even some victims of domestic violence could be denied legal help, said family law association Resolution today as the coalition government consultation on legal aid reform closes.
The proposed cuts could also create spiraling costs for the taxpayer and create chaos in the family court system.
David Allison, Chair of Resolution, said: “The Government’s deeply-flawed proposed cuts could spell the end of family legal aid in England and Wales. They would certainly be a hammer blow for huge numbers of families and children, creating a society in which it is virtually impossible to gain free legal help when going through the pain of divorce and separation.
“The Government should shelve these quick-fix proposals, and take a more considered, constructive approach. That includes fully joined-up thinking with its own on-going Family Justice Review. Otherwise the Government risks creating an expensive mess that will cause misery for huge numbers of families and children.”
Resolution’s major concerns include the fact that large groups of vulnerable people will no longer be eligible for legal help, including people wanting to divorce or whose partner wants to divorce them. The only option available to families who still qualify for legal aid will be mediation, which is not suitable for all cases.
“A fatal flaw in the government’s proposal to only fund mediation to separating families is the fact that it requires both people to be willing to take part. If one parent is denying contact to another, or refusing to be reasonable about money they can simply refuse to attend mediation.
“The only option for those then left suffering injustice is to give up, or to represent themselves in court. No easy task at the best of times, let alone at a time of high emotional stress,” said David Allison.
Other large groups of people in need – including parents who need legal help in tracing or arranging contact with their children and cohabitants at risk of losing their home – will also no longer be eligible for legal aid, except when there has been recent domestic violence.
For such people the Government is using a definition of domestic violence that is needlessly and unhelpfully narrow – leaving people suffering domestic abuse particularly vulnerable and possibly having to represent themselves against their abuser in court.
Other key concerns are that all legal aid will only be accessed through a single government telephone helpline – a proposal that could have a disproportionate impact on ethnic minorities, young people and women and needs further thought and consultation.
“Legal aid should be given a higher priority in the Government’s funding choices. Access to justice is a basic human right and a mark of a civilized society,” said David Allison.
Resolution also says that the Government’s proposals could be the final nail in the coffin for many legal aid providers, leaving too few lawyers able to help the small numbers of vulnerable people who would still be protected by family legal aid.
The reduction of family legal aid cases will inevitably result in large numbers of people representing themselves in family courts, a problem that the Government admits it has not assessed. Increased numbers of people representing themselves in court will clog up the family court system, with cases taking much longer than at present.
Resolution is campaigning to persuade the Government of the urgent need to review its controversial proposals, and ensure that legal aid genuinely does provide access to justice for the vulnerable.
Resolution is a group of over 5,500 family lawyers in England and Wales. Established 26 years ago, it promotes a non-confrontational, constructive approach to resolving family disputes. To find out more, visit http://www.resolution.org.uk/.
Case studies demonstrating the sort of people who will be hurt by these proposals are available here.
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