Another u-turn on legal aid

Family Law | 18 Feb 2015 2

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I’ve commented here many times about the obvious lack of forethought involved in the legal aid cuts that took place in April 2013. Results that were clearly foreseeable to anyone with a moderate knowledge of our family justice system were apparently not realised or considered by those responsible for the cuts. It would be quite amusing, but for the effects of those cuts on people having to use the system. I’m sure, for example, that those fathers who have been unable to obtain contact with their children without legal assistance will not be laughing.

Only last week Lord Justice Aikens suggested that the legal aid cuts may have been a false economy, as the lack of representation of parties at court has meant that judges are having to spend their time doing things that legal representatives would normally do, such as finding relevant documents and researching the law. Legal aid cuts leading to fewer people being represented in court? Who could possibly have foreseen that?

The latest example has led to something of an about-face by the Ministry of Justice (not that they would ever admit it).

Last year someone at the Ministry of Justice woke up to the fact that the legal aid cuts removed public funding for the provision of expert evidence in private family law cases, including funding for DNA tests to establish parentage, and also realised that the lack of this expert evidence may be causing delays in private law children cases, thereby compromising the welfare of the child. Accordingly, the Ministry set up a pilot scheme to fund DNA tests in private law children cases in Taunton and Bristol, to see if this improved the situation.

Unsurprisingly, the results of the pilot were positive. The tests meant that judges could be more confident when making decisions about children (again, obviously), without having to go through lengthy fact-finding hearings, which made cases more adversarial. Further, and most importantly, parents were more likely to follow the court’s orders. Previously, cases would often be returned to the court, as the underlying issues had not been dealt with.

Responding to the results, Justice Minister Simon Hughes has now announced that from September this year all family courts will be able to order publicly-funded DNA paternity tests, where they consider the test necessary in order to resolve the case justly. Strangely, the announcement did not include the phrase ‘u-turn’, and also made no mention of by how much the funding of the tests is expected to reduce the original savings resulting from the legal aid cuts. There was also no mention of whether the funding would be means-tested in any way.

So, just to be clear on this, the government abolished public funding for private law DNA paternity testing in April 2013 and in September 2015 the government will be re-introducing the funding. If that is not a u-turn, I don’t know what is. And it’s not the first time. For example, last year Mr Hughes, realising the problems caused by the legal aid cuts, had to announce a package of support for litigants in person, albeit a paltry sum compared to the original legal aid budget.

Don’t get me wrong: clearly, it is good that mistakes are rectified. However, obvious mistakes of this nature should never have happened. I realise that there was a pressing need to save money, but it really does beggar belief that such an important matter as the abolition of legal aid for most private law family cases was given so little thought before it was implemented.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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    1. Paul Apreda says:

      Hi John

      Paragraph 6 line 2 – ‘all Family Courts’.

      Sadly you’re wrong – only those in England


    2. Ruth Jenkins says:

      The change in the law does not appear to alter the fundamental problem that although the court can order the tests, and fund them, the parent with care (usually the mother) cannot be effectively sanctioned if she refuses to allow the test to be done. This is not uncommon, so the change does not seem sufficiently far reaching.

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