When real life meets theory: the government and legal aid

Family Law|Stowe Family Law|January 13th 2014

Recently Victor Zermansky, my former principal to whom I was articled, passed away aged 81. When I was his trainee, he and his firm were in their heyday. A brilliant scholar, he had started his firm aged only 23, building it up from scratch. By the time I joined him, when he was in his 50s, his firm had grown and he represented some of the most prestigious clients and companies in the area, but he never forgot what he regarded as his obligations to the less fortunate. He was passionate about legal aid.

Thirty years ago, when I was his trainee, virtually everyone who wasn’t very wealthy qualified for legal aid, albeit with a contribution and we made no distinction at all between any of our clients. I too followed his lead until the early 90s. I had a young son and was unable to work full time but of course still needed to make ends meet, so I decided to quit legal aid. Everyone else in the firm continued to offer it however.

High street family lawyers across the country also followed the same route, working hard for a diminishing rate of return over the years, until last April when the axe finally swung. Private family clients, once eligible for legal aid to go to court, were hung out to dry, left with only mediation available to them via legal aid.

Mediation has been continuously pushed and promoted by the current government as a replacement for the courts, but what has happened in practice? It has been roundly rejected by a public who are voting with their feet. They trust the law, they trust the courts, they trust solicitors and they don’t want mediation. Numbers in mediation have dramatically slumped. Instead, they are applying in their masses to the courts.

Simply put, mediation hasn’t worked. So the government is faced with a huge predicament. We cannot underestimate the scale and size of this problem or the potential for worse to come as new arrangements come into effect designed to keep people out of court.

We lawyers play a large part in the justice system. We oil the wheels of the courts, we are vital cogs in a process that ensures the law is operated correctly and fairly. We advise and fight for our clients – that may have become an unfashionable concept to all except the man in the street, but it is exactly what our clients expect from us. They entrust their futures to us and in return we do our best to make sure their futures are good ones.

We are also a vital buffer between the judge and the client. Judicial discretion is a cornerstone of family law – it is applied to every case. It needs lawyers to make a strong case for their clients, and to advocate for the fairest form of resolution using the tools of the trade: law, case law and of course our own intellect, honed after many years of training and experience in the field.

Remove those lawyers, and chaos ensues – something we have already seen over this past year. The system has hit the buffers and the results are clear: litigants in person causing chaos in the court room, ignorant of the process and the law, too frightened or too emotional to settle outside court. This is particularly the case in family law, where emotions frequently run very high. And who can blame desperate people when their lives, their children’s lives and everything they own is all being turned upside down and there is no-one now to help them through a legal process?

The government so often sees the world only through the prism of accountancy –  if something initially looks cheap, it must automatically be good they conclude. But when real life fails to comply with the theory, when the public can see they are being short changed, the government still charges onwards with initiatives that can end up costing more than they save. We saw it with the CSA.

We now have the government spending £25 million, a staggering, eye-watering sum, on mediation. I’ve been a mediator for 20 years and it still hasn’t taken hold. It has its uses, granted, and can at the right time work very well. But it was never intended, and never should be intended, to replace the court room.

It didn’t take off 20 years ago, and it hasn’t taken off now, because mediation must be consensual for it to have any prospect of success. If your partner has left you or been unfaithful, or is trying to prevent you from seeing your children, are you realistically likely to achieve a successful mediated agreement at that point? No. People full of hate, anger, or loss, offered either a lawyer just for them or a lawyer-mediator unhesitatingly want their own lawyer, to act for just them alone.

The government’s thinking is muddled – it appears logical on the surface but is based on fundamental flaws. Forcing people down one route and expecting them to reach agreement doesn’t guarantee any success. Mediation doesn’t necessarily offer even a legally qualified mediator (as opposed to an experienced judge. It offers no orderly process governed (if necessary) by court orders, no interim relief, no legally enforceable outcome. It will still leave participants in limbo even when it works, because it’s only a partial process, much the same as the agreements parties are now encouraged to make in relation to child support.

So please, let’s think this through. Let’s not waste masses of millions on promoting mediation which was never designed for this kind of job and continues to fail. Let’s call a halt to the much-too-basic, far-too-gimmicky apps, websites and calculators, none of which can provide the personally-tailored outcomes every couple is in fact entitled to under a law which is a benchmark for other legal systems across the globe.

Let’s spend all that money instead on devising a new form of legal aid, one designed for the contingencies of real life, one that can work – a tool, not a weapon.

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. Tristan says:

    Lawyers had plenty of opportunity to contribute to the Norgrove review but aside from a few, largely ignored it or were not prepared to countenance change. We now have a very unsatisfactory situation in family law where there is still no proper legal presumption for meaningful contact, no clear guidelines rooted in sound, child development understanding, far too much leniency shown toward phony allegations and far too much waffle room left for judges. Is it any surprise there is chaos in the courts?

    None of that has the slightest to do with the availability of legal aid or lack of it. The fact of the matter is that legal aid was hugely abused and led to massive distortion of cases and plain injustice for many parents and children. Deal with those problems first before moaning about its absence.

    • Marilyn Stowe says:

      Dear Tristan
      I’m not suggesting bringing back a bloated inefficient legal aid system that permitted hopeless cases and was a license sometimes to print money for little return. I’m suggesting streamlining it, one that works. I run a legal practice but I also run it as a business.

  2. u6c00 says:

    Marilyn I think you’re absolutely right. There is a significant gap in the information to LIPs, and there are many many more of them.

    If your ex moves out with the kids and won’t tell you where they’ve gone, who will tell you what form you need to fill in to locate your kids? The court office staff would give you their required “we can’t give advice” and CAB aren’t all that helpful with family law. If you’re very very lucky you might live within 50 miles of a Personal Support Unit (there are 7 locations in the UK) but there’s no one to even tell you they exist.

    Who will tell you how to prepare a bundle? The FPR do, but there’s no one to tell LIPs that these rules exist, and if you’re average person should stumble upon them they’re not exactly plain English.

    There are some very supportive community web sites like mumsnet, wikivorce and maybe even moneysavingexpert (amongst others) but they don’t get any funding for the work that they do.

    £25 million to raise awareness of mediation might make a big difference to a small number of people, but the government also needs to be investing in ways to make cumulative small differences to the large number of people in the courts already.

    And for goodness sake stop sending people to mediation where all contact has been stopped. It’s a waste of everyone’s time and money!

  3. Tristan says:

    Marilyn, Norgrove, with his civil servant ways and reliance on false propaganda (“the Australian experience”, was never going to tackle a real problem and never bothered. Quite why people take him seriously – someone who propounded the risible notion that a government-driven, family law “hub” was half the answer which, along with the other half, enforced mediation, was going to resolve the ills of UK family law – deserves to be a research project in its own right. I learned a huge disrespect for the whole legislative process from what I experienced of his phony review, highjacked at every turn by a motley crew of self-interested, DV-obsessed Gingerbreaders and their no-changer, allies in the English civil service and family justice system.

    The problems in family law need thrashing out by more enlightened people working from a common understanding of what it requires of parents to raise healthy children after separation. And by enlightened people I include those who suffered under the yoke. Analyse a hundred of their cases. See what happened to their children, like mine perhaps who never saw one of their parents again. Recognise alienation for the real and present harm that it is and not ignore or downplay it.

    Within that look at legal aid. How many cases truly justified the tens of thousands poured into them on behalf of a resident parent resisting contact while the other side went unrepresented? If solicitors truly want this work, they have to cut their rates. Family lawyers at £250 an hour plus, plus VAT is not on for 90% of parents. You have to start charging lower fees and make them reasonable, fixed even, so punters will bite. And use the internet more to lower internal cost. Legal aid plays a secondary role – to analyse a position, to prepare a response or an application perhaps, but not to fund ninety nine different ways of saying “No” to contact. Never, ever again, I hope.

    There is an ever-burgeoning body of serious, peer-reviewed child development knowledge on which models of good, post-separation parenting plans can be based. Why are we still reliant on the standard Napo-influenced, Cafcass claptrap which modern science can replace in an instant?
    There are existing SureStart centres too up and down the land which could be brought into play rather like the Australian version. Has anyone bothered to find out how they’re doing? Or are we all still transfixed by the scorn and rubbish Norgrove poured on “the Australian experience”?

  4. Anonymous says:

    Legal aid should be available, for everyone, regardless of color, age, gender, wealth. The fact that it is not is just taking us back to the dark ages.

    For it to work in family law, you’d first need to overhaul the system, purge the corruption, make the judiciary truly independent of the state, and introduce an air of fairness for both parties (both parents be made to feel they are important and needed).

    Still, I wonder if legal aid would have made any difference for people like Duggan’s family. One gets the sense that the minds of judges are already made up, or that they have already had them made up by someone else.

    So what’s the point in legal aid when you have authoritarianism and corruption to the extent that we do? And when lawyers are willing to go along with the farce?

  5. Stitchedup says:

    “Mediation has been continuously pushed and promoted by the current government as a replacement for the courts, but what has happened in practice? It has been roundly rejected by a public who are voting with their feet. They trust the law, they trust the courts, they trust solicitors and they don’t want mediation. Numbers in mediation have dramatically slumped. Instead, they are applying in their masses to the courts.”

    Given that the norm for most women is to make an allegation of domestic to get the upper hand in the gamesmanship of divorced and separation, it is hardly surprising mediation isn’t working; an offer of mediation is trumped by any allegation of domestic abuse.

    Most women trust the family courts because they know they have the upper hand; most men don’t.

  6. Luke says:

    “Legal aid should be available, for everyone, regardless of color, age, gender, wealth. The fact that it is not is just taking us back to the dark ages.”

    Of course – why not – and I’ll have a money-tree in my back garden whilst we’re at it…

  7. Tristan says:

    The Duggan finding was made by a jury not by a judge. And who is to say that Duggan’s family did not receive legal aid? I’ve not seen anything to suggest either way. The provision of legal aid for criminal law matters remains. It is family law where it has been mainly removed and on balance, for good reason. The system was badly abused by both litigants and lawyers; a case of reaping what was sowed.

    Lawyers need to make proposals how legal aid can be sensibly applied to private law cases against an over-arching requirement that justice is delivered for both sides, not just one. Applied for the benefit of one party only, unbridled legal aid can produce massive distortions in cases. I’ve yet to see some decent ideas from lawyers on how to achieve this.

    • Marilyn Stowe says:

      Dear Tristan
      I agree with you. Legal Aid should not be used as a weapon and the process should be more testing including the potential overall benefit to the applicant and the ability to repay.
      Currently we have a situation where the costs rules don’t put either party at risk so the wealthier party can now safely pursue a tactic of financially outgunning the poorer party and in many cases, the poorer party who would have been eligible for legal aid isn’t able to afford to litigate through lawyers at all. Its certainly my experience through people contacting this blog and my firm there are a lot of people with cases that clearly need the involvement of lawyers but who cant afford to pay straight away.
      In children cases where the parties are arguing about for example where the children should live and for long with either parent, I don’t see a problem with parties appearing in person and being hived off to mediation or what is now the Magistrates court who are more than competent to get people to see sense – but in more complicated cases eg involving a point of law, complicated urgent action such as an injunction in a financial matter, or finances generally and your home, or sometimes very complicated cases eg as is the case for cohabitants, or enforcement of orders where there has been a breach, I think legal aid should definitely be available not least because the costs involved would be repaid with interest running at the appropriate rate until repayment.
      My concern about mediation is that if it fails it wont get the parties anywhere and even if it works legal work still has to be done.

  8. Anonymous says:

    Luke, there is no shortage of money trees, they are grown by unsavory people whose sole business is concerned with taking advantage of vulnerable people, robbing people of their homes, or something similar. Some redistribution of the wealth would solve your problem, as would deflating lawyers fees to something a bit fairer.

  9. Anon says:

    Why not just hire official court solicitors on a salary of about 45-50K to represent the public without the state having to pay for private legal reps?

    I am not sure where it states that the government is required to pay for a lawyer of your choosing. If this provision does exist I would very much like to read it.

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