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My review of the year (part two) by John Bolch

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As I mentioned in the first part of this Review, mediation would be one of the recurring themes of the year, constantly being promoted by the Government as it tried to divert attention from the virtual abolition of legal aid for private family matters. More of the latter in a moment.

It came as no surprise, then, that in March Family Justice Minister Lord McNally took the opportunity of a speech to a conference of the Family Mediation Council to call on mediators “to lead the way in promoting out of court solutions to help separating families”. He told mediators that ‘their time was now’, meaning that they would be needed as a plaster to cover the gaping wound that the Government was about to inflict by abolishing legal aid. In the course of the speech he suggested quite incorrectly that most people choose the courts rather than try to settle matters by agreement. He also said that legal aid would continue to be available where needed, but did not mention that mediation is not always successful – there would be no legal aid available in those cases. In other words, if you can’t afford representation, then you have to go along with whatever your spouse offers, or you’re on your own. The speech was also ironic in the light of the effect that the legal aid cut was to have upon the livelihoods of mediators. I’ll have to more to say on the latter in a later part of this review.

And then it happened. The legal aid cuts took effect on the 1st of April, but was no April Fool’s joke. In fact, it was one of the most profound changes I can ever recall in my now thirty-odd years practising or commenting upon family law. For the first time, we had a two-tier system, where those with money could afford to be properly advised and represented, and those without could not. A very sad day, and the end of ‘justice for all’. In future, only the better off would be able to enforce their rights. At the time I was reminded of the inscription above the main entrance to the Old Bailey, which reads: “Defend the Children of the Poor & Punish the Wrongdoer”. The words now seemed to ring a little hollow.

The cut would also herald a new era for the courts, flooding them with ‘litigants in person’ (who act on their own behalf, without legal representation), adding to delays and causing additional expense that would erode or wipe out any money gained by the reduction in the legal aid bill. I suspect also that this situation will discourage many capable lawyers from becoming judges, those who would prefer to spend their time deciding cases, rather than explaining basic law and procedure to litigants in person.

Of course, the Government was anxious to point out that is was finding some more money to help separating couples, albeit a paltry amount compared to the £350 million it was cutting from the legal aid budget. On the tenth of April the Department for Work & Pensions proudly announced that: “Over a quarter of a million separated parents are to benefit from £6.5 million of support to help them to work together for the sake of their children.” The money would go to seven voluntary organisations that support separated families. Welcome, no doubt, but a drop in the ocean.

Moving on to other things (well, sort of), in April Cafcass reported that both private law children applications and care applications had reached record levels. The first of these worrying statistics was thought to be due to people rushing to get their applications in while they could still get legal aid. The second was put down to the continued ‘Baby P’ effect, whereby local authorities were endeavouring to avoid another tragedy such as the one that occurred in the Baby P case.

I shall conclude this part of the review with something that was new but that would become quite familiar as the year progressed. On the 15th of April the new President of the Family Division Sir James Munby treated us to his first View from the President’s Chambers. He used these to update us of the progress of the reform of the family justice system, otherwise known as the Family Justice Modernisation Programme. In this first instalment he discussed the fact that the reforms were divided into three parts: the creation of the new single Family Court, the recommendations of the Family Justice Review and the issue of ‘transparency’, or better access to and reporting of family proceedings. We would be hearing considerably more about all three throughout the rest of the year.

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, with his content now supporting our divorce lawyers.

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  1. Paul says:

    Why do you lawyers continue to harp on about legal aid delivering “justice for all”? It most definitely does not.

    I would like a lawyer to explain to me how “justice for all” is attained when one party gets it and the other, for whatever reason doesn’t. What it actually means is one-sided justice. That spells injustice, for him usually, and that’s completely incompatible with his Article 6 rights.

    What does this unfairness mean in practice? I had to speak up for myself, unrepresented, in the high court against a mother with no less than four professionals ranged against me: solicitor, her assistant; counsel; counsel’s assistant and all funded by the legal aid gravy train. Amongst other things my application for parental responsibility was being opposed, a scandalous misuse of public funds seeing that there wasn’t a hope in hell of her case succeeding. It was abuse of that kind and on that scale which influenced the government to turn down the tap and hopefully for good. It’s not even true or honest to suggest legal aid has gone in family cases because it hasn’t; mothers suffering real domestic violence (as opposed to tactical balance sheet stuff) will still qualify.

    Where the government has got it wrong in my view is not in trying to force people into mediation but to do so in the absence of a proper presumption for contact. In other words provide the parties with a decent legal framework and let them negotiate round that, something which I note from another article that the author expressed thanks that the government had dropped.

    It seems like someone wants to have his cake and eat it.

  2. Luke says:

    ‘I would like a lawyer to explain to me how “justice for all” is attained when one party gets it and the other, for whatever reason doesn’t.’

    I don’t see a coherent explanation coming for that any time soon, I’ve asked that question myself.

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