Current eligibility criteria for legal aid are unbalancing family court procedures, the President of the Family Division has declared.
Sir James Munby spoke at the recent annual general meeting of the charity Families Need Fathers. He highlighted the availability of legal aid in ‘private’ family cases when domestic violence has been alleged, saying it would be “idle” to imagine that this has not affected the progress of such cases.
Private family cases concern disputes between individuals.
When one partner alleges domestic violence, the President declared, the spouse who made the allegation – “usually but not always the woman” – is often granted legal aid while her partner may have no representation at all, an imbalance of power which presents “problems”.
“It produces problems for the partner, typically the man. It produces problems for the judge. Most importantly of all, it produces problems for the child because, as I repeatedly say, unless both parents have a fair process then the child is not having a fair process and if the parents don’t have a fair process and the child doesn’t have a fair process then the risk one is running is not only injustice to the parent but injustice and worse to the child.”
It is the duty of judges to ensure that proceedings in their courtroom are fair, Sir James continued, and judges must state clearly if the absence of legal representation for one party in a family dispute means that they is not fair and so potentially risk the best interests of any children involved.
The President also referred to the increasingly “sceptical” approach taken by the courts to expert reports presented by children’s Guardians, social workers and Cafcass in family disputes. He noted:
“People who come to court with sloppy things, not properly thought out, are told to go away.”
In August, the Sir James said the Court service may have to pay for some individuals to receive legal representation when legal aid has been refused.
Read a full transcript of Sir James’ speech, entitled Family Separation – Opportunities and Problems, here.