Law on the cheap

Family Law|April 22nd 2015

The outgoing government was responsible for the most significant changes in access to justice that have occurred in the forty-odd years since I first thought about becoming a lawyer. Now, I am not adverse to change. In fact, I have always been fairly optimistic about it – after all, most change is for the better. But change can only be for the better if it is properly thought through. Unfortunately, that is not a way you can describe most of the changes that the government brought in, in particular in relation to legal aid.

I have written here on many occasions criticising the government’s policy on legal aid, pointing out its many faults. Another example popped up in my inbox this week.

As we know, the government abolished legal aid for most private law family matters, in April 2013. The ‘flagship’ policy to step into the breach was, of course, the promotion of mediation. If all those who previously received legal aid to go to court now agreed their disputes via mediation (for which legal aid was retained) then no one would care that legal aid for court proceedings was no longer available. As I have explained previously (for example here), there are numerous flaws in this argument, not least the obvious one that you can’t force people to agree matters. However, leaving those flaws aside, let us look a little more deeply at the practical reality of the policies.

Before I do that, though, we should remind ourselves that today is the first anniversary of it becoming compulsory for separating couples to attend a mediation awareness meeting before they can apply for a court order. This, of course, was introduced by the government to encourage mediation (without actually making it compulsory), as fewer couples than the government wanted were going to mediation of their own volition. The government had clearly not heard the expression that you can take a horse to water, but you can’t make it drink.

Anyhow, what would be the obvious result of a policy encouraging mediation? Well, more people contacting mediation agencies of course. Which means that mediation agencies will require more resources to cope with the increased demand. However, the charity National Family Mediation (NFM), the only non-profit nationwide provider of family mediation, has said that the government has failed to provide funding to help it and similar organisations meet the increased demand. NFM says that in March 2014 its helpline received 1,400 calls, whereas in March 2015 it received 3,300 calls, a rise of 140 per cent.

And it gets even worse than that. NFM say that the nature of the calls it receives has changed, as well as the quantity.

As Jane Robey, CEO of NFM, says:

“When legal aid was still available for divorce cases, people would go to a solicitor and receive funded advice and information. Now they cannot access legal aid for divorce so they turn to the internet and the telephone to research their options themselves. So there’s been a sea-change in the type of calls we take – confused people unsure which way to turn, needing advice, often semi-hostile as the anger of their separation is still raw.”

As a result, the average handling time for calls to the helpline is now 15 minutes per call, much more than previously, when calls were essentially just an appointment-booking process.

Thus, further pressure is put upon an already overburdened system. NFM say that they have missed hundreds of calls, leading to many needy people missing out on vital help.

It is surely the duty of any government to fully consider the foreseeable ramifications of its policies, and to take steps to ensure that the necessary resources are in place to make those policies work as intended. All of the above should have been perfectly foreseeable to the government before it implemented its policies on legal aid and mediation, and yet now we find ourselves in the position that the flagship of mediation is unable to cope with the demands that are being placed upon it.

It would be nice to think that the next government will employ rather more joined-up thinking than the outgoing one, but I don’t hold out much hope of that. It seems that we must get used to the fact that justice generally and family justice in particular has been allowed to slip down the priority list, as it is not something that most people care about most of the time. At least until they find themselves in need of legal advice.

Author: Stowe Family Law

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