Closing the door on justice

Family Law|February 12th 2016

I have made no secret of my views on the government’s scandalous near abolition of legal aid.

When the Legal Aid Sentencing and Punishment of Offenders Act, commonly known as LASPO, came into force on, highly appropriately, April Fool’s Day 2013, it closed the door on public funding for most family cases. Some – including commentators on this blog – have welcomed this development, asking, in effect, why should I pay for someone else to get divorced?

But this approach fails to grasp the reality of the situation. Yes, some family disputes are about choice and driving a personal agenda, but many – perhaps the majority – are not. Take, for example, the wealthy spouse who leaves their husband or wife and refuses a fair settlement. They will almost appear in the family court surrounded by a phalanx of solicitors and barristers, while their betrayed spouse hovers on the other side of the courtroom entirely on their own because they do not qualify for legal aid but cannot afford a solicitor either.

What about the spouse who claims to be the victim of domestic violence, is granted legal aid as per the regulations, claims the house and then denies her estranged soon-to-be-ex access to their children, an ex who, like so many, cannot afford a lawyer but does not qualify for aid either?

And then there are the truly tragic cases like that of Kerrie Backhouse, whose partner carelessly poisoned their son with a morphine pill and refused to agree to agree to her scattering his ashes while he served his jail term. Kerrie too could not get legal aid and could not afford a lawyer, Her case consequently and predictably languished until I intervened and asked one of our solicitors to help her on a pro bono basis.

Sadly, Mrs Backhouse died just months later.

How do such imbalances of power serve justice? Answer – they do not. But it seems the current government does not especially care. And now, not content it seems with hindering justice through the erosion of legal aid, it has announced plans to close 86 county, family and tribunal courts around the country.

Justice Minister Shailesh Vara insists that 97 per cent of us will still be able to “reach their required court within an hour by car” after the closures. To which there are of course two responses:

1/ How do they know?

2/ What about the remaining three per cent? What are they supposed to do? Three per cent of 56 million – the approximate population of England and Wales – is 1,680,000. Even if Mr Vara’s claim is correct, it seems quite a lot of people will still be left struggling to reach a courtroom if and when they need to.

The government insists these closures will make the justice system more efficient – in other words, it is all about cutting still more costs. To paraphrase Oscar Wilde, they seem to know the cost of every element in the British legal system but the value of none.

I committed my first thoughts to Twitter when I heard the news: the odds are now against the average litigant in this country. This is not the justice system I joined.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(14)

  1. Andy says:

    Typical current policy on slaughtering all courts and again with all increased costs…so what do we need government for we may ask..
    Well,so far by there standards and not our problem attitude, so, why don’t we get rid of them..
    They are a burden to our society..waste of taxpayers money and don’t even work if possible but claim every thing…
    So when every thing has either been sold off,closed down and services been withdrawn..what then…
    Usually left for the masses to sort….

  2. Kris says:

    Says much about this government’s wilful myopia that car distance is the standard – when many people don’t have cars b/c they can’t afford them.

    Access to justice for the most vulnerable should not depend on the kindness of strangers.

    I remember when (back when labour were in power) the Tories were all about legal aid and justice.

  3. Otla says:

    I quite agree and lament the sham that is justice in little Britain. It will just get worse with Brexit, because then Britain will have nobody to hold its tsunami of human rights abuses (which are of course never reported on in the fascist press) to account. But I find it is rather embarrassing for people who voted Tory, knowing the destruction wrought by Thatcher, to complain about these things. What did you expect? It is as if Tory voters had been born yesterday. How pathetic to be so blind.

    • Andrew says:

      Oh please. The European Court of Human Rights in Strasbourg has nothing to do with the EU. It is several years older and embraces many countries which are not in the EU. We could leave the EU and still retain the jurisdiction of the Strasbourg Court.
      .
      We would no longer be under the jurisdiction of the European Court of Justice in Luxembourg which is quite separate.

  4. Luke says:

    I believe that judges, lawyers & barristers and other interested parties have been complaining about the reduction of legal aid to no great effect for 2 reasons:-

    (1) The legal aid system became a ‘bread & butter’ employment scheme for the legal profession ( 🙂 ) – but the costs became prohibitive and actually some people in the legal profession became very rich indeed (by normal people’s standards) – there was no self-policing at all and as a result of this they paid the price and the government stepped in.
    .
    (2) The majority with some savings could always be destroyed in court by the wealthy (we have a Rolls Royce system for people who generally can only afford Ford Mondeos), but once the use of legal aid started to be abused they could also be destroyed by the poor who could use legal aid to force their court opponents to haemorrhage money and effectively surrender just to get out of court.
    .
    Point 1 was a “nice little earner” for the legal profession and Point 2 most in the legal profession didn’t give a damn about because it didn’t affect them.
    .
    So guess what ? When the legal profession started squealing about the loss of legal aid the vast majority of the public didn’t give a damn either…

    • spinner says:

      Exactly we need to either remove or reduce the money from the system for regular people with a formula type system as used in many other countries. Very rich people can still use the RollsRoyce system as you put it but everyone else below a certain threshold uses the formula. This would put money back into the hands of families and children when they most need it and stop them being exploited at a very vulnerable point in their lives.

      • Marilyn Stowe says:

        Dear Both
        Along the lines of the CSA? Wish you luck. Doesn’t work. Creates more hardship than it ever cured.
        Regards
        Marilyn

        • D says:

          I have been married before – but thankfully got an easy divorce 15 yrs ago due to domestic violence on legal aid very quickly and effectively. Two years today (valentines day) i married ago forced into marriage by my narcissist mother that I was removed from her care at 7 due to severe neglect and abuse and i sadly developed stockholm syndrome upon my return to the family at 17 – then she emotionally encouraged me to change religion to islam and move to manchester and marry him (yes like an idiot I did) then he said he would move in but he did not, then he got me to marry him under british law then the next week went and applied for a visa to stay in the uk – then the dv with him started, I did not notice it at first – but it became gradual and then serious – went top the police, ss, gp and mental team and reported it – family turned there back on me due to reporting him for serious offences against me and my daughter (not his) then they all did nothing and his community set about coming here in the home and threatening me as his mate was the landlord of the house my ex forced us to move to (still there now as ss threatening me I can not move otherwise they will say as they are that I am not working on the cpp plan they forced on me – c later why) then in aug out of the blue Police turned up and said they wanted to charge him for offences against me and kid. He eventually stopped coming here – but he started non molestation action against me full of lies in court and went to court behind my back (he has to do this to keep his visa once I had told him I was divorcing him) i had to go and face him in court alone as I could not get legal aid or anyone to be with me in Sept – i had to face him and his legal team even though he was facing serious sexual offences and nobody would help. I have got postponement until march this year now but need to action the financial hearing later this month and deal with him getting divorce on his false grounds as nobody will help me fight on 19 th as I have no legal aid still as firms keep making mistakes when applying for it and its taking too long – there is going to be a serious misccarrriage of justice here as hes got his mate to fight for him to save his case as this guy is being investigated by the SRA for serious misconduct in our case and the home office due top false visa BUT nobody helping me. I have loads of evidence from police, gp and others dated April last year with evidence over his abuse to me – but he has none though he lies in court statements he reported to the police all the time – the police have not had any report till they went to him to deal with his abuse against us – but he is getting away with lying right now as nobody cares enough to help me and I am still fighting for legal aid and I am disabled due to childhood abuse causing a mental illness can not work due to this and he can win as his mates are funding him etc to keep him in the uk as he is a imam – the killers here are this>
          * My daughter was abused by him (NFA Police as they failed to deal correctly due to error of not responding in April when they should and then he touched her in Aug 2015) asked for review from cps today on this and all cases – sent this everyqwhere to Police, cps, council ceo and others
          *My daughter tried to kill herself due to what he did to her above and social say cpp needed as I failed to protect her (excuse me they were asked by me loads of times before and after to help all recorded and also by the Police but they did nothing until she tried to kill herself and now its all my fault and they say if i move her from here they will take court action (tonight police been again as someone tried to kick in back door and they have said after 6 months they think its my ex and ss say we can not move from here and its his mates house with keys etc -my daughter is scared and yes i feel i am abusing her by not running but ss are threatening me if i do and lying through there teeth but I have only just told them today and the police i have all recordings of their lies)
          *my ex brought a guy here in Aug last year when my daughter was here and my 20 yr old son and the male sexually assaulted me in the home with kids here (now gone to cps last week) anyway ex did loads more – police now confirm he married me for visa only and he abused me and the kids and I still can not get legal aid to help me fight in court his false claims for violence (I can prove mine with injuries and my daughters) financial order, contest divorce on his lies and the fact I am told he is married in pakistan before he met me and married someone since he was with me (so bigamy marriage) so i was forced into marriage to be seriously abused by my family and my ex and my kids too – police dealing with cases in manchester through cps and cases in derbyshire against my mum through cps due to child abuse but nobody gives a damn cos I can not get legal aid – where is the justice in that !!!!! hes been allowed to abuse my kids and i and get away with it just because of legal aid been stopped being granted so easily and I am a pure 150% victim of dv and he chose me with my mums help as I have a mental illnessand they did not think I would fight back but I am – but i cant do it on my own and nobody cares about us

        • spinner says:

          The great thing about humans is that they can learn from experience and iterate to improve a design or in this case a process. The basic idea of CSA is fine, you have a child, you separate and then there is some formula based on how much you are taking care of the child by which you calculate the amount of your income to pay until the child is 18. The problems have been in the implementation or lack of. So taking that experience we can use the lessons from that to implement a formula based system for spousal maintenance and capital payment. Just by defining marital and non marital property properly and setting maximum times for spousal maintenance based on length of marriage along the lines of Florida would remove half the arguments straight away.

        • Paul Apreda says:

          Hi Marilyn – really positive to see you interacting on the blog.
          I wonder whether the majority of service users of HMCTS (remember the S stands for ‘service’) feel that they have received a good one. I take your point re CSA BUT it does create a ‘norm’ of expectation. What we see all the time is that the only thing that is predictable in the Family Court is unpredictability. If you are being prevented from seeing your child there should be a reasonable expectation that the Court system will support and defend the child’s right to contact – BUT all too often that flips into a defence against unfounded and malicious allegations. Even when those allegations are found to be untrue there is no consequence for making false statements to a Court.
          I firmly believe that if bringing back Legal Aid is the answer, we’ve asked the wrong question. HOWEVER we don’t make the rules, so we’ve changed our position as a charity in Wales as our first duty is to support our service users and more importantly their children. We are actively supporting our service users to obtain the evidence of domestic violence in order to access Legal Aid. We normally do this by sending service users to their GPs with the template letter asking for a referral to a specialist DV support service. We are also in the process of establishing ourselves as a specialist DV support service so that we can provide the qualifying evidence when we receive confirmation from GPs. Some might find this controversial. I am very open about this new policy and shared what we were doing with the head of the Legal Aid Agency in Wales just before Xmas.
          Do you have plans to expand your own services into Wales? Do you have a Legal Aid contract? If so, let’s work together. best wishes, Paul

        • Luke says:

          I don’t want to use the CSA as a template – I want to get rid of the adversarial system and introduce an inquisitorial system.
          It should be about justice, not who (via huge wealth or Legal Aid) can buy the most talented lawyers and who can take the financial pain (because they are not paying anything !) the longest.
          .
          I do think certain templates should be used as guidance, but only within an Inquisitorial framework.
          .
          Spinner’s idea of formulas is also in my view better than what we have now, you say it won’t work but won’t work for who ? I don’t know anyone of my acquaintance who thinks the current system is good. My personal experience of it through my relatives is truly dreadful.
          .
          I know the people within the legal system would dislike such changes because there would be less money involved and fewer people would be required to make it work – so unfortunately it probably won’t happen – but what we have now is really bad for the general public and has to be changed by somebody with the guts to change it.

          • spinner says:

            Luke, if you have time do a google on Ruth Deech’s Financial Provision bill where she is putting forward something very similar to this. If you like it consider writing to your MP through writetothem website and ask for your mp’s opinion on it and see if they would consider supporting it and maybe ask your friends and family to do same.

          • Luke says:

            Spinner, my MP is part of the regressive left, they want to spend more government money on every issue of the day and they are pretty dodgy on free speech too – so I don’t think I’ll bother !

  5. NOTINMYNAME says:

    My Grandsons Family Court Case, Unexplained Injury, was legal aided. not one legal aided legal involved, including judges did not know my Grandsons birth certified name, not a court order within the case was worth the paper it was written on and by being in a false name covered up the truth my grandson only had birth injuries, as for the money they earned, my wishes to them and all of theirs for every penny they pocketed

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