Monday 1st April 2013 must rank as the darkest day for family law in this country. It was the day when the concept of equal access to law for all was swept away. From that day only those with money were entitled to proper legal advice and representation. The rest of society became an underclass, left to their own devices as they tried to navigate the mysterious seas of our family justice system.
Of course, there are many good people who are not prepared to stand idly by when they witness hardship. Since that dark day there have been many initiatives created with the intention of providing legal help for those who no longer have access to it. The initiatives have taken various different forms, and the latest phenomenon seems to be the court-based clinic.
Last month it was announced that a pro bono advice scheme is to be launched at Bristol Civil and Family Justice Centre from November. This has now been followed with the news that a free advice clinic has been launched at Cardiff County Court. The clinic is a collaboration between the court, local lawyers and universities. It will provide initial legal advice, information and advocacy and will run between 9.30am and 1.30pm on Tuesdays and Thursdays, which are the family hearing days.
Now, this is all very worthy and I have nothing but admiration for those who are prepared to give their time for free (I did so myself on many occasions throughout my career). However, and with the greatest respect, a few hours a week is just not the same as providing proper full-time representation, as was possible when we had a full legal aid system. A bit of advice and assistance will help, but it will hardly level the playing field for those litigants whose opposite numbers have the benefit of full legal representation.
And just how good can that help be? To provide proper representation in all but the most straightforward cases involves an enormous investment of time: interviewing the client and witnesses, obtaining expert evidence, preparing documentation and so on. How can a limited pro bono scheme provide anything approaching the level of help that used to be provided?
And then there is the problem of both parties in a case having no representation. The recent figures from the Ministry of Justice indicated that neither party is represented in about 30 per cent of all private law children cases. Obviously, in such cases both parties are going to be wanting legal advice when they attend court. Now, the same lawyer advising both sides will obviously involve a conflict of interest. Accordingly, the clinic will always have to have two lawyers available to provide advice. Will they have the resources to do this?
Then there is the point that I have made here previously: are all these well-meaning people doing the government’s dirty work for them? Every minute of free time given by a lawyer or academic makes it easier for the government to ‘get away’ with its decimation of the legal aid system by filling, even if only in a partial way, the huge advice gap left by the abolition of legal aid. Why should the government ever consider restoring legal aid, or even funding limited legal help for the less well off in society, if others are going to solve the problem for them?
Lastly, and it’s another point I’ve made previously: why should people give their time for free? Why should family lawyers be expected to do something for nothing? Contrary to popular belief most are not ‘fat cats’ – especially those who do legal aid work.
Lawyers in private practice receive fee income for the work they do, thus it makes a direct difference to their bottom line if they are not doing fee-earning work – unlike, for example, a teacher, who receives the same income whatever they are doing. Lawyers will therefore be worse off if they spend time that they could be using for fee-earning on pro bono work. Who else in society is expected to give up their time and income in this way?
Don’t get me wrong: I welcome these advice clinics and all of the other initiatives to provide legal help for those in need. I just regret that those people will still be worse off, and feel greatly saddened that, for the sake of very limited savings to government spending, we find ourselves in this position.