A penny for the guy by John Bolch

Family Law|November 5th 2013

As someone who grew up in the Apollo era and who often dreams of that career I never had with NASA I am still fascinated by space launches, and try to watch as many as possible. This morning I watched the launch of India’s Mars Orbiter Mission. If all goes well, the mission will put a satellite around the Red Planet next year.

Meanwhile, back here in England we are preparing to launch our own rockets, albeit of a somewhat less ambitious kind. Tonight is Guy Fawkes Night, the annual celebration of the failure of that infamous attempt to blow up Parliament. Personally, it’s not something that partake in – I have long since grown out of fireworks, although I would still light the odd fuse if we had been celebrating a successful attempt to blow up those politicians…

What has all of this got to do with a family law blog? Bear with me.

The Indian space programme has attracted considerable criticism from some quarters. It reportedly costs the Indian Government around £600 million a year. Some commentators have questioned whether a country such as India, where many live in poverty, should be spending such a sum on an unnecessary ‘luxury’ like a space programme. After all, the country has one of the highest rankings for childhood malnutrition in the world.

Meanwhile, back here in England, in April the Government saved the rather more modest sum of £350 million a year by slashing legal aid. As a result, many people with family law problems can no longer obtain legal advice. In other words, proper advice and representation in private law family matters (i.e. those not involving a local authority) is effectively now the preserve of the better off. In reality, this means that many will be left without rights, as they cannot access the law to enforce them.

I suppose it all boils down to a matter of priorities. It does, however, strike me as somewhat ironic that a country that can’t feed its children spends so much on a space programme, while a country like ours that, by most measures, is considerably richer per person chooses to take away the rights of its less well- off citizens.

Lawyers have, of course, been protesting about the legal aid cuts, but the Lord Chancellor Chris Grayling is adamant that there is no longer money available for such things. Politicians, after all, always know best.

Which brings me back to Guy Fawkes Night. As they prepare for the celebration I suspect that many a legal aid lawyer has had the idea of putting a Chris Grayling mask on their guy, ready for the bonfire this evening. It may not bring back legal aid, but it may just make them feel a little better.

So, if you should see Chris Grayling out on the street today, give him a penny – he clearly needs the money.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Paul says:

    Can’t get legal advice because there’s no legal aid? That is just so untrue. There’s any amount of online advice “out there” for starters and there’s places like Citizens Advice who can refer you for pro bono support as well as support groups like Families Need Fathers. There’s also a fast-growing McKenzie community comprising individuals who will take your case on and deliver results for a small fraction of what a solicitor would charge. Some don’t even charge at all.

    This propaganda around abolition of legal aid needs to be exposed for what it is. Propaganda.

    Legal aid in family cases leads to distortion, iniquity and, above all, injustice. Good riddance to it.

    • Marilyn Stowe says:

      Dear Paul
      What are you thinking? How can you recommend non lawyers for legal advice? Would I recommend a lawyer to pull your teeth out or operate on your abdomen? Of course not, nor would you want them to. So what on earth are you thinking?
      Funding is a different issue.

  2. Paul says:

    I keep harping on about what I believe ought to be done. What I’d like to see is a different system entirely, one where children (in the main) do not become exposed to litigation at all and where by definition solicitors do not feature. It’s a question of philosophy and approach. This system we have now won’t do. Even the justice review, stuffed full of systems people, concluded it was disfunctional. We’re still leaning on a cr.ppy act of parliament which needs to be thrown out along with the dishwater. More than twenty years experience of it ought to tell you that. Just because a law is there, doesn’t mean to say it’s any good.

    Apropos your analogies, you do not need an eye surgeon to remove a lash from your eye, nor a brain surgeon to deal with your head ache. Reasonably intelligent people can soon find their way around a family court and its law. And solicitors do not exercise a monopoly on the wisdom of Solomon either, and wisdom rather than legal knowledge is often what is required in these situations. Does that answer your question?

    We need a new era in family policy where the expectations of society and peers alike, is that parents of a child work together for that child. That would teach people responsibility around having children. Neither the Children Act as it stands nor lawyers, will deliver that. In that regard, legal aid acts as a prop to a fundamentally failed system.

    I appreciate that’s an extreme view but you only have to look at the mess that is family law today to realise that Elastoplast won’t do.

  3. ObiterJ says:

    Good post. It is, for me, made all the worse because we send considerable overseas aid to India. For all I know, the aid money may well reach the poor but it also helps the Indian government to have money for their space programme. The vast sums outlayed by the UK government on many other things gives the lie to Grayling’s comments about no money. There is no money for ‘justice’ because it something the government does not see as a priority.

    Paul – please note that many Law Centres etc are closing. No funding for them either. There is no good alternative to having a lawyer in court acting for you. All other options – including MacKenzie friends – are limited.

  4. Anonymous says:

    I have to agree with Paul. I think that until we have a non gender discriminatory approach to family law, which recognizes the importance of involvement of both parents, and which helps parents work together rather than pitting them against one another in a way that encourages violence, allegations, clogging of courts and squandering of public money, I could not support one penny being wasted on family law legal aid.

    Legal aid should not go to people that want to use the courts to bully one another, but to vulnerable people who are trying to defend themselves against the full spectrum of social injustices in this country.

  5. Obiterj says:

    On legal aid, I think it is necessary to distinguish public law cases (involving local authorities) from private cases. Almost no legal aid for the latter and the court time some of these cases is taking up is incredible. With good focussed lawyers there is a huge saving in time.

    As for parents working together I would say: If only! However, some times they are willing to do so and it is identifying such cases which is crucial. I recall one care case where the local authority wanted a care order with view to adoption. The mother was alcoholic. However, she was encouraged to undergo professional treatment (then paid for by the NHS) and her husband was supportive. The outcome was a happy return of the young boy to his family + some support from the local authority. Needless to say, this took over 26 weeks. Around 18 months as I recall but it was, to my mind, worth it.

  6. Paul says:

    The way family separation works presently is that a warring couple uses a solicitor. If they don’t use one in court, they use one in mediation. Either way, parents are always around lawyers and courts too possibly, which inevitably colours the way a post-separation relationship develops.

    Best to get these problems out of lawyers hands entirely and into the hands of trained parenting and family counsellors who are better placed to advise on continuing parental relationships post-separation. Legal aid wouldn’t enter into it, by definition.

    If a local authority comes calling to nick your child, that’s almost a life or death situation compared to a private dispute between squabbling parents. That is a legal situation from the off, a different kettle of fish entirely to the more prosaic circumstances of a private separation. Why do the legal bods continually confuse the two as though if you have the one, then it’s an injustice not to offer the other?

    Where the government goes wrong is first, by appointing the wrong people who talk to the wrong people and second, by trying to reform family law on the cheap without considering wider social policy which largely discourages fatherhood.

    • Marilyn Stowe says:

      Dear Paul
      When you get married, you enter into a legally binding contract. When it dissolves that too requires a legal process. Division of assets must be done according to the law, which is flexible enough to be appropriate for the richest to the poorest. Ascertaining the assets is one cause of friction. Not everyone is prepared to be full frank honest and complete as required by law. So only a judge can assist in determining not only the whereabouts of assets, (which may be in third party names or offshore)protecting them from dissipation but also determining their values. I have come across many cases in my career where one party values their interest in a company at nil, which turns out to be worth several millions of pounds. Which trained counsellor do you suggest has the competence to determine this out of court, and thereafter the legal authority to impose that upon the parties?
      The parties thereafter, cannot always agree about whether an asset should be kept sold or transferred. If they cant agree a Judge will decide.
      Finally the parties cannot always agree about who gets what, in terms of capital and income, long term and short term, how debts will be managed and so forth. If they cant agree, a Judge will make the decision.
      These are only a few examples of the law in action, via a court process which relies upon lawyers on both sides to present their client’s best case to ensure the judge is fully informed and arrives at the correct decision.
      There are residence and contact disputes, Inheritance disputes, Property disputes, all of which come before a court because the parties do want resolution by a Judge, because that is their democratic right and they are exercising it.
      Its a great pity you don’t understand or want to understand, that what you write in such negative terms, is a real threat to our society and the freedoms we enjoy which citizens of other countries can never hope to achieve;- one reason they choose if wealthy enough to litigate here.
      Don’t be so quick to throw it away.

  7. Paul says:

    I don’t want to throw liberty away, Marilyn, far from it. My own father was an exile from a repressive, illiberal regime. My mother was a member of the Society for Individual Freedom. Have you heard of them? I believe I understand the notion of liberty better than most. It is noticeable here for example that you permit the airing of views which do not accord with your own and that is appreciated.

    In general terms, I also support the use of a solicitor where the application of law is required. And I also support the idea of helping deserving people with causes worthy of support. You happen to be a particularly good solicitor in my opinion and represent your profession very well indeed but I don’t think you understand that unlimited claims on an unlimited state-funded pot was not only unsustainable but led to abuse of cases involving children in particular.

    The application of legal aid to private disputes over children can have a dramatically distorting and illiberal effect. Consider my own anecdotal experience. I lost contact with my children, basically for ever, largely because I was up against a determined, state-supported mother who was able to impose her will with the copious amounts of free legal aid she received on a continuing basis to oppose applications. I couldn’t get parental responsibility without an order. I couldn’t get to see my children without an order. I couldn’t have my children to stay without an order. I couldn’t take my children to an overseas family home without an order. At times, like Christmas, I couldn’t even get to see the children for the court-ordained time I had without an order. Legal aid did not fund justice. It funded obstruction, negativity and allegations for ten years. On occasion It funded four professionals in court, solicitor, barrister plus assistants all ranged against me. It caused a father to become obsessed, disfunctional and angry. Time and again I heard adverse obiter dictum from judges as the amount of free legal aid piled up. (I am guessing, but the amount would run into six figures as the litigation endured so long.) Yet not a single judge, including Sir Stephen Brown, head of family division who I appeared before once, lifted a finger to stay “Stop. That’s enough.” And actually do something about that in both practical and legal terms. My children’s mother was always allowed to argue a case which justified the wheelbarrows full of legal aid she received. Abuse of legal aid led to abuse of process and abuse of the law itself in my opinion. She took liberties allright but her freedom didn’t end where my nose began. And the system of free legal aid was her great enabler.

    And so the gravy train chugged on until I was finally told by a jerk of an ex-probation officer to “step away” and the court refused to enforce its own orders. Misapplication of legal aid put an end to paternal involvement for good.

    Perhaps you would spell out exactly how the liberty you espouse is supported when you have the detailed, anecdotal experience of case after case like mine. Liberty
    is not supported by unrestricted public demand to an unrestricted, state-funded pot. That is madness. Where misapplied, legal aid leads to oppression and injustice. Those are the values that eventually characterise cases like mine and that’s why I say good riddance to the bottomless pit that legal aid became. It is simply not appropriate, fair or just to keep funding family cases about children in this way. Liberty accordingly, does not come into it.

  8. Stitchedup says:

    Firstly I agree with Paul’s comment- “It is noticeable here for example that you permit the airing of views which do not accord with your own and that is appreciated.”

    I’ve had my wrists slapped on a few occasions but I do appreciate Marilyn and her team allowing debate.

    I’m at risk of looking like an armchair lawyer here, but I’ll say my bit anyway. I fail to see how the principle of equality of arms is met by one party having access to almost unlimited state funded representation whilst the other gets nothing because he/she earns £1 above the threshold for legal aid.

    I was in a similar position to Paul when my ex applied for an ex-parte non Mol and occupation order. The non-mol was served on me at 8:30pm on a Thursday evening and the full hearing was set for 10:00am the following Monday morning. I had no time to prepare my case properly or to find representation, not that I could afford it anyway. I turned up at court Monday morning to be met be the barrister representing my ex and entered the court to find a solicitor sitting next to my ex….. a lamb to the slaughter!!

    I’ve seen it mentioned on here that ex-parte non-mols cause a problem because the full hearing is often delayed. They can also cause problems if the full hearing is arranged too soon and the respondent doesn’t have time to prepare his/her case or to find representation. Another problem is that it can take weeks-on-end to get access to police reports which are needed to prepare a case, particularly if there’s a history of police “positive action” and “no further action” which was the case for me. The only time the police took further action was when I was arrested for breaching the ex-parte non-mol by speaking to my ex.

  9. Luke says:

    “When you get married, you enter into a legally binding contract. ”

    Marilyn, how does this relate to the encouragement of the proposed cohabitation law – which specifically has NO contract at all ?

    I would also say that I don’t see how India having a space programme to Mars whilst at the same time allowing a percentage of its population to be extremely malnourished and without care can be sensibly compared to the rights and wrongs of Legal Aid in the UK.

  10. Paul says:

    You enter into a contract all right when you marry but it’s been rendered worthless and unenforceable in law. The only principle that counts these days is that what belongs to the wife is hers and what they jointly own is hers too. Sad to say but for a man, there is little point in marriage at all seeing that statistically you are just as likely to divorce as remain married.

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