An evening at All Souls College, Oxford – and why I agree with Baroness Deech about legal aid

Family Law|April 24th 2012

On Friday evening, an audience gathered at All Souls College, Oxford to honour Dr Stephen Cretney’s 50 years in the law. Our number included academics, judges, lawyers, jurists, fellows and friends.

It was a magnificent setting, inside and out. We gathered in the Old Library: a treasure trove. Grinling Gibbons, the great wood carver, made considerable contributions to All Souls and I suspect that the magnificent “thrones” – the hand-carved wooden chairs on which our speakers were seated – were made by him.

The speakers included three baronesses: Baroness Butler-Sloss, the former President of the Family Division and Baroness Deech, both of whom sit as crossbench peers in the House of Lords; also Baroness Hale, who sits as a Supreme Court judge. Professor Sanford Katz was present to give an American perspective. Rebecca Probert chaired; her co-editor, Professor Chris Barton, modestly stayed in the background. It was a pleasant atmosphere. There was little by way of debate, but plenty of informed comment. Pre-selected academic members of the audience asked questions about family law, and the topics were old favourites.

On this blog we regularly discuss shared parentingrights of access to the courts, the impact of increasing numbers of litigants in person on the court system, the role of the Supreme Court and the fate of legal aid. So did the panellists – but with a marked difference. My clients and readers have personal experience of these subjects. The panellists were speaking from their experiences as distinguished and learned academics or senior judges, whose contact with large numbers of people over relatively long periods of time is, I suspect, rather more limited.

As a family lawyer, my day-to-day work brings me into contact with many people whose cases are unlikely to go anywhere near the Court of Appeal, much less the Supreme Court. I remain far from convinced that people at the top of the system appreciate that the troublemakers and their views are a tiny fraction who give everyone else a bad name.

So what was said?

On shared parenting there was swift, general consensus around the entire room that there should be no change to the law, because the interests of the child are paramount and the waters mustn’t be muddied.  So I was in the minority, because I would welcome a change to the welfare checklist for parents. I would prefer the law to become more akin to the Scottish system, which puts the child’s welfare first but also recognises the parent’s rights to parent that child. Parents in England and Wales do not enjoy these rights at present.

Then the discussion turned to the future of family law, legal aid and reduced access to the courts.

Lord Pannick, Lady Butler-Sloss, Lady Deech and others have been valiantly trying to save legal aid for family law. The Lords inflicted 11 defeats on the Government when they sent the legal aid bill back to the Commons. This week the Lords have been debating it all again, in a game of parliamentary ping pong. The Government is reportedly keen for Parliament to approve the legislation before the end of the current session, and the MPs had overturned all the Lords’ changes – only to have a further three defeats inflicted upon them by the Lords yesterday. The ping pong continues, but I fear that legal aid is now all but lost to family law and it is a terrible day for the country.

Afterwards at the reception – held in the Codrington Library, with its beautiful coffered ceiling and high, tiered bookcases – I found that this view was not shared by everyone. I spoke to one All Souls fellow, who was formerly with the Treasury.

In clipped tones, he told me that the abolition of family legal aid had been on the cards “for years”, and about time too. Legal aid had to go, he said. There were people who couldn’t afford access to dental treatment – why should access to law be any different? Listening to his opinion, I gathered that the poor would have to make do!

So should access to justice be the preserve of those with access to money? Their Ladyships didn’t seem to think so, and spoke movingly about their concerns as to what lies round the corner. They clearly care a great deal about the profound impact that the cuts will have on the courts and on the poor, the vulnerable and the weak. They expressed their concerns for the judiciary, which will have to cope with large numbers of such cases.

I thought about Mr Justice Ryder who wasn’t mentioned. Charged with overhauling the family justice system, he must determine how best to gear the courts for change – and handle the expected mass of bewildered litigants-in-person (LIPs). Just last week, all solicitors received a directive from the Law Society regarding the appropriate treatment of LIPs. And I predict the outcome of dealing with their increased numbers even now: Adam Sampson, the Legal Ombudsman is going to be swamped. Sanford Katz confirmed that in America, this has been a significant and ongoing problem for many years.

Lady Deech queried why £10 billion have been invested in the Olympics, a two-week wonder. She said that she had a bee in her bonnet about it. Just a fraction of those monies, she pointed out, would have saved legal aid.

I could have hugged her! As regular readers may recall, I have disagreed with Lady Deech’s views in the past. However everything Lady Deech has to say about legal aid, and the efforts being made by the House of Lords to try and save legal aid, are praiseworthy indeed. Ironic, isn’t it, which House of Parliament is for abolishing legal aid and which is for saving it?

Lady Hale wanted to know what was wrong with people wanting to go to court? She made a very fair point.  A court administers justice between disputing parties, and people are entitled to justice. Why dissuade them?

The government is doing all it can to turn people away from going to court. Reading the papers this weekend, I think the media have (finally!) cottoned on to what is happening and the scale and size of what is to come. What a shame that this blaze of publicity is coming too late. Even if concessions are made for victims of domestic violence, there will still be hundreds of thousands of people unable to get proper access to justice. Thousands of lawyers will lose their livelihoods. I don’t expect sympathy but there should be, because these are the skilled lawyers who have never sought big fees and who serve the public working at tradesman’s rates. And what’s wrong with that?

When I began practising I could never have imagined that family law legal aid would be abolished. I was so pleased to hear what Lady Deech, who came across as thoroughly decent and caring, had to say. And afterwards at the reception, I told her so! It appears that she reads this blog, so in my blunt Yorkshire way:

Well done Lady Deech! Please keep up your excellent work for all those who are most in need of help, and for the preservation of a legal system that was once the envy of the world.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. ObiterJ says:

    What can one say? Some of the attitudes which you mention are precisely the reason why lawyers and law get a bad name.

    Sadly, there is always money for what the government (irrespective of political colour) wishes to spend it on. Billions will be spent on military campaigns, the Olympics or whatever else takes the fancy of politicians.

    The removal of legal aid from many areas of law is an absolute disgrace and Kenneth Clarke, who has embraced this policy with enthusiasm, should hang his head in shame. Getting Part 1 of LASPO through has become a test of the government’s manhood and to hell with fairness to people – (bit more blunt Yorkshire)!

    In so many ways, the House of Lords has consistently shown itself to be more on the side of civil liberties and access to justice than the elected Commons. This is a paradox in our supposed democracy. At the moment there is an appalling arrogance in the Commons with a Cabinet composed almost entirely of very very rich people. They care nothing for the people on the streets.

    Yes, self-represented litigants (SRLs) (as they are now being called) will be more and more the norm and yet they will be expected to adhere to the law and complex procedural rules. This is utterly unfair – especially if the SRL is up against a professional lawyer representing the other side.

    I wonder if Lady Hale is in the running for the Presidency of the Supreme Court? I would like to think so but I suspect that there are “dark forces” at work. I would be very surprised if she got it – assuming of course that she is even interested.

    Even amid the gleaming spires it is good that someone can keep their feet on the ground. Well done Marilyn.

  2. Rachel says:

    I was a LIP during my divorce proceedings and was both shocked and dismayed when I attended at the court office one day to file my application to enforce the court order made at the final hearing because of non compliance by the respondent. I needed to ask a couple of questions which were straightforward and of an administrative nature. The clerk was willing to help but she said to me as an aside that strictly speaking she was not allowed to help me as I had chosen to be a LIP and it was not the responsibility of the court to assist me.
    I had used up all my financial resources by that stage in the very protracted proceedings. In effect, a District Judge can preside over a 2 day hearing, make an Order and then the court is obliged to be unhelpful when it comes to one party seeking to enforce that Order without legal assistance. The underlying message being: consult a solicitor! It makes life easier for us!

    I was extremely lucky because I sought the advice of Marilyn Stowe and was given very good advice completely free of charge. Thank goodness for this blog and well said Marilyn!

  3. DT says:

    How can those “at the top”,  be so disconnected from those “at the bottom”; those many of whom they claim to serve?! 

    Reading this, you’d think we lived in Tudor times! That, unfortunately, is where some of these people reside – in another world! ‘Talk about not fit for purpose!

    I trained in a legal aid practice in a very socially and economically deprived part of the country. The family department had to close because of legal aid cuts etc. A lot of our clients (who used to walk to the practice), struggled to even find the bus fare for themselves and the kids to get to the nearest practice which provided legal aid, that’s how bad it is for some people.

    And what about the clients with learning difficulties and mental health problems?  Many of them couldn’t stand on their feet in court and do what some LIPs courageously do. They are certainly being failed as access to justice is being made ever more inaccessible.

    As ever, beautifully summed up Obiter J. I think the wealth on the front bench is very significant here.

    Thank goodness that ordinary people have the likes of Marilyn taking up these thorny issues; you don’t have to do it Marilyn, but you do – so thank you once again.

    3 cheers for Lady Deech!


  4. Joy Spence says:

    DT absolutely agree with your views vulnerable people’s access to justice and those without money, learning difficulties an even mental health problems will be placed in a position of being unrepresented and facing significant disadvantages as a result of the legal aid changes. The courts will also be inundated with documentation that is incomplete and incorrectly presented and this will cost the courts a lot more time and money as a consequence. It appears the only way forward to rectify this situation would be the formation of a charity to assist those who no longer have access to legal aid to gain some form of representation/ a wonderful pro bono unit or incorporating these further in legal practices. As in other areas where charities have to take over to help with the needs of vulnerable individuals.

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