Legal aid has effectively been replaced with the kindness of lawyers (from Solicitors Journal)

From my latest Solicitors Journal column “Family Business”, 19/3/2014

Last month I reflected on the changing nature of the private family law system: the emerging trend for self-representation, in addition to initiatives to keep people away from courtrooms. I noted that despite the changes there remain those who, like Mr Justice Coleridge, are convinced of the need for lawyers to play a central role in family law’s future. The truth is, practitioners can and do resolve problems between warring clients on a daily basis, even when the case reaches court. It turns out that sometimes, a nice cup of tea and a sit-down is just what is needed – for clients, as well as practitioners.

One recent family feud made the news for just this reason: ‘Family judge tells warring couple, “settle it over a cup of tea” – and it worked!’ was the headline given to a case heard before Mrs Justice Pauffley last month. The hostile case had finally been cracked by the experienced high court judge along with the lawyers representing the couple, one of whom had appeared pro bono on behalf of the mother. The parents had racked up 24 court appearances in a decade, fighting over contact with their 12-year-old twins.

In her judgment, Mrs Justice Pauffley praised “the incalculable benefits” of the former partners having to give evidence and listen to each other. She remarked that “sometimes it is possible to achieve real and substantial progress as a result of the hearing itself.”

Of course it is. Isn’t this the beauty of our private law legal system? With an experienced judge, patience and practitioners who not only present their client’s case but also work collaboratively together – as many family lawyers do daily – even the most hostile of parents can turn No Man’s Land into middle ground. They can come to understand each other’s positions and that of their children.

Some have argued that last month’s hearing before Mrs Justice Pauffley was a waste of time, money and other scant resources. I disagree. The fractured family at the centre of the case were well-served by a combination of excellent lawyers and the judge herself. I note that the 12-year-old boys both wrote thank you letters to the judge and travelled to London to meet her in her chambers. Let us also remember that even now, when parties are represented, the majority of private family law disputes are resolved at solicitors’ offices or at the first hearing. Lawyers’ abilities to bring family disputes to an end with collaborative skills mean that relatively few become the spectacular disputes familiar to us all as headline fodder.

I note that in the case heard by Mrs Justice Pauffley, the pro bono lawyer who represented the mother so effectively had been enlisted less than 24 hours before the hearing, following a last minute search by a barrister representing the Children’s Guardian and a McKenzie friend who was there to assist the father. Considering the circumstances, the outcome could not have been better , and the determination of those involved to resolve the dispute peaceably can only be commended. However I feel uneasy when I look to the future. It will be interesting to see how this landscape changes, given the removal of access to lawyers from all but the most privileged in the land. Legal aid has effectively been replaced by the kindness of lawyers who are prepared to act on a pro bono basis. As to whether this solution will be effective or sustainable in the long-term, we will have to wait and see. I have my doubts.

This article was first published by Solicitors Journal, and is reproduced by kind permission

Photo of barristers’ wigs by ASC Shakespeare Camp 2013 via Flickr under a Creative Commons licence