Legal aid: the elephant in the room

Family Law|August 26th 2014

Last week the Ministry of Justice and the Department for Education released an update setting out the progress made since the Family Justice Review was published in November 2011. The update is entitled A brighter future for Family Justice: a round up of what’s happened since the Family Justice Review, and it includes an annex setting out the progress that has been made against all 134 of the Family Justice Review recommendations.

I’m not going to summarise the entire 44-page update here, but rather just pick out a few things from it.

The update begins with a ‘Joint Ministerial foreword’ by Simon Hughes, Minister of State for Justice and Civil Liberties representing the Ministry of Justice, and Edward Timpson, Parliamentary Under Secretary of State for Children and Families, who of course represents the Department for Education. They remind us of the state the system was in back in 2011:

“The Review found a system that was failing the vulnerable people it was supposed to be serving, characterised by incoherence, distrust between agencies and a lack of leadership.”

However, help was at hand:

“Reforming family justice and child protection was, and is a priority for the government and the Ministry of Justice and Department for Education are pleased to present this publication which sets out the significant progress that has been made.”

The ministers then proceed to summarise that progress, under the optimistic headline “Building a brighter future”. So, what progress do they mention? Well, they mention the new single Family Court “which will improve the experience for all those who need to go to court” and then there is the 26 week limit for care cases and… well, that’s about it.

They skirt around the elephant in the room, i.e. that legal aid has been abolished for almost all private law family matters, by telling us that legal aid remains available for mediation and that whilst they recognise that some cases will require litigation they are firm in their belief “that it is better for all those involved if disputes can be resolved without the stressful experience of going to court”. The only crumb of comfort for the huge influx of litigants in person created by the abolition of legal aid is that they are working to make sure that those unfortunates “receive the support and advice that they need to represent themselves”. Quite how that “support and advice” is to create a level playing field upon which litigants in person can compete with fully represented opposite parties is not explained.

Moving on, the update itself does inform us of rather more items of progress than mentioned by the ministers. In fact, so keen is it to pass on the good news that it mentions many of those items in no fewer than three places: Part 1 (“Family Justice – a new landscape”), Part 2 (“Progress against the Family Justice Review Recommendations – A system with children’s needs at its heart”) and the aforementioned annex. Of course, there is nothing that is new in all of this – anyone who has been following the Family Justice Review and its aftermath will be fully aware of what has happened.

The only piece of additional information that I picked up from the update is confirmation that the Government intend to implement the new ‘presumption of parental involvement’ in section 11 of the Children and Families Act in the autumn (a rumour I think I heard somewhere before). Under section 11 the court is to presume, unless the contrary is shown, that involvement of both parents in the life of the child will further the child’s welfare, for what that will be worth.

So, if there is nothing new in the update, then what is its purpose? Well, call me cynical, but it’s hard to escape the view that its purpose is simply to paint a rosy picture making the Government look good and thereby deflecting attention from the Government’s true family law legacy: the decimation of legal aid and the exclusion of vast swathes of the most vulnerable in society from family justice. It is the Government, not the system, that has failed the vulnerable people it is supposed to be serving.

Photo by RMLondon via Flickr under a Creative Commons licence

Author: Stowe Family Law

Comments(4)

  1. Stitchedup says:

    “The only crumb of comfort for the huge influx of litigants in person created by the abolition of legal aid is that they are working to make sure that those unfortunates “receive the support and advice that they need to represent themselves”. Quite how that “support and advice” is to create a level playing field upon which litigants in person can compete with fully represented opposite parties is not explained.”

    This is exactly the scenario that Legal Aid encourages… The party receiving Legal Aid gets full representation, the party without Legal Aid is often forced into being a LIP because he can’t afford representation.

    I’m all for avoiding court if at all possible through arbitration and/or mediation. Court cases invariably lead to all sorts of allegations that often result in bad feeling and the total destruction of the family.

  2. Mooputab says:

    It is far better now.

    Legal Aid ensured that one party was funded for months and years in many cases with a solicitor and barrister while the other one maybe had representation for a few weeks until the tens of thousands £ ran out.

    Now we have more parents going into courts on a level playing field with both parents either LIP or both with representation paid for by private funds.

    Win Win.

  3. Nordic says:

    I agree with above comments and express the hope that the influx of LIPs will so strain the courts that the whole system breaks down. Then maybe parliament would find the courage to impose real law starting with a robust and clear marital property regime so people can know the rules when they marry and equally be assured that those rules will be abided by if they divorce. Then judges could focus on the aspects of family law that genuinely require discretion instead of wasting time on dividing assets ad hoc on a case by case basis and creating huge uncertainty in the process. The current lawlessness creates an artificial need for these courts and feeds, what by the standard of most European countries is, an obscenely bloated family law industry.

  4. Anonymous says:

    I think it is a real shame that political and economic interests have made a shambles of family law in this country, turning the family courts here into the unfairest courts in Europe. It is a real shame that the extreme abuse of legal aid in UK family law (encourgaged from within by practitioners and from without by anti-father charities) has led to a situation where those who are really suffering injustice have now been deprived of legal aid. I fully support legal aid, and think any society without it is barbaric, but could not support it in family law until the whole system has been razed and rebuilt by healthy-minded people with no vested interests.

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