Legal Aid Cuts Rip Into Family Law

Just recently we featured a blog post about how the government’s austerity project is causing great financial losses and administrative problems to the health care industry through cuts to the NHS and higher education. In this follow-up article, we will discuss the problems that the cuts to Legal Aid are causing in the Family Law system.

Soaring Numbers of Litigants-in-Person Cases

Family Law courts are not traditionally a place where litigant-in-person matters arise. Usually those are found in small claims courts where the cost of legal representation would not always be worth the investment. Besides, in the past, Legal Aid was always available to low income earners in Family Law cases.

Not any more. According to a report in the Guardian, the number of self-represented Family Law cases has increased to almost double what it had been in the previous year. As the report points out, the effect of cutting Legal Aid has increased the overall cost of Family Law cases. This means it is costing tax payers more than if the Legal Aid cuts had never been introduced.

The report states that the cost to the public purse is estimated at an additional £3.4m due to the extra time required to hear cases where both parties to a dispute are self-represented.

We are certainly not against litigant-in-person action. In fact, we encourage it because we believe most solicitors charge excessively, and of course we suggest that legal consultants provide better value to most people appearing in court. When you have a legal consultant working with you the delays mentioned in the Guardian report don’t occur.

Unfortunately, not everyone knows about the existence of legal consultants as an option, and so they think their only option is a Legal Aid solicitor or handling the matter entirely alone. Some low income earners may feel that they can’t afford even the modest fees of a legal consultant, and those families are the ones that are bearing the full brunt of the government cutbacks.

Children Hardest Hit by Changes

The BBC reports that the Legal Aid cuts are damaging for children. Citing quotes from a Family Law trial judge and from a female parent who had clearly been disadvantaged by the system, the article describes how the drawn-out legal processes are proving to be too tough on children.

Crispin Masterman, a senior judge in the Family Law court, told the BBC that:

The damage that’s done is both emotional and probably, in some cases, psychological as well, and the difficulty is that parents don’t see this, they’re so tied up in their own issues that they forget that the child’s welfare is the paramount issue.

This is not a statement that seeks to heap blame on parents. It is an observation by somebody intimately involved in the system, highlighting how the system is failing the very people it is supposed to be protecting. At the heart of that failure is the cutback to Legal Aid.

Government is out of Touch with Reality

Something that especially stands out in the BBC report is an indication of dissonance between what the government thinks should be happening and what really is happening as a result of their changes. A spokesperson for the Ministry of Justice was quoted as saying:

… we have recently announced funding for free mediation sessions, as well as improving the advice and information available for couples who are separating.

This may seem like a positive step forward for the government, but the reality according to another report in the Guardian says:

The number of couples attending mediation sessions plummeted last year following the removal of legal aid; divorcing couples stopped going to solicitors who would have directed them on to trained mediators.

Measures designed to push people into mediation aren’t working, but in report after report the Ministry of Justice is rolling out the same tired line about free mediation being available as an option. The numbers are showing that people do not have faith in mediation as a solution to their problems. They want to go to court, even when that may seem like the more difficult path to take.

Simon Hughes was quoted in the Guardian, saying:

We are closely monitoring the impact of the legal aid changes and will continue to do so. Court performance is being maintained with the average time taken to complete cases remaining steady since April 2013.

This statement contradicts all the known evidence that indicates that the courts are under severe stress and barely coping. The National Audit Office reported that cases where both parties do not have legal assistance are taking up to 50% longer, there was a 30% increase in the number of such cases between 2013 and 2014, and a staggering 89% increase in the number of those cases that involved the matter of contact between parents and children.

Given these statistics, there is simply no way that the minister’s statement about average completion times can be true. It can only be surmised that the government is using the same “optimistic accounting” that enables it to declare that the NHS and education cutbacks have been a success.

Specific Cases of Note

Family Law is a delicate and very complicated area. It is delicate in the sense that it deals with matters of great importance, but must do so in the most careful manner. Every case involving children requires some discretion on the part of the court, and a need to protect the anonymity of the individuals involved.

Family law litigation can sometimes be ugly. Many parents consumed with rage against their former partner are moved to use their children as a means of hurting the former partner, failing to notice the harm that is also inflicted on the children from this action.

One of the ways that parents sometimes manifest this ugliness is by making accusations of serious misconduct against the other parent. For example, some have falsely claimed to have been victims of domestic violence, or have claimed that the other parent has sexually molested the children, or have claimed that the other parent ascribes to some manner of despicable vice. All this is intended to bias the court against that parent.

Compounding this tragedy is the fact that it is not only a case of a parent lying, but sometimes also coaching their children to lie, or lying to the children to convince them that the other parent has done terrible things.

Fortunately, the court is aware of this tactic and does not always succumb to it. Everyone involved in the court process is human, however, and decisions can sometimes be biased or otherwise unfair. Generally the more outrageous the claim is against a parent, the more chance there is that the process can be corrupted by the allegations.

This is why Family Law in the UK has inherited a bad reputation, because there is a perception of bias when serious allegations are made against one of the parents, where the allegations can be difficult to disprove.

Technically there should be no need to disprove an allegation. The burden of proof should be on the person making an accusation but because these matters are so sensitive and because they involve children, the court has been known to apply “benefit of the doubt” in a way other than what it should (when this happens to you, there are legitimate grounds for appeal).

The importance of respecting the presumption of innocence was called out by Lord Bingham of Cornhill CJ in R v Brown(Milton) [1998], in which he stated:

The trial judge’s duty is to ensure to the utmost of his ability that the defendant, even if unrepresented, or perhaps particularly if unrepresented, has a fair trial. Every defendant is not guilty until proved to be so. Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not.

This is a very clear statement that the court should not assume that because somebody is accused of something terrible, the court should proceed as if that terrible thing had actually happened. No judgement should be based on circumstances that have not been established by weight of evidence.

Now a conflict exists between the duty of the court to uphold the rights of people who appear in court, and the directive of the government to cut back on Legal Aid funding. For example, in Q v Q [2014], Sir James Munby said:

In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.

That is a very profound statement indeed!

This is one of several very similar cases that have recently come to light. In all of these cases the lack of legal assistance to one or more parents has presented a problem to the presiding judge because, for one reason or another, to proceed without legal assistance would make a fair hearing impossible to establish.

Therefore in these circumstances, the judges have taken the extraordinary step of overriding the government’s wishes to exclude the parties from having access to publicly funded representation. This means effectively that the court is providing Legal Aid but without actually calling it Legal Aid. So what do we get then? Yes, additional costs that arise firstly from the case having already been dragged out for months on end, and then subsequently the added cost of providing legal representation for the parties involved in the litigation.

Unfortunately for most people, they won’t meet the special conditions that applied in those cases where the court felt moved to appoint solicitors even for people who had been denied Legal Aid and were unable to pay for representation.

If you have been denied Legal Aid, you can still receive top quality legal assistance from Hylton-Potts. This is a low cost alternative to hiring a solicitor, and is clearly much better than attempting to handle the case by yourself (see the quote from the mother cited in the BBC report, above, for a good indication of why this is so). Call us on 020 7381 8111 or send an email to [email protected] and tell us about your situation.

We would be interested in your comments.