December 16, 2010
This is an expanded version of my latest Family Business column in Solicitors Journal.
Darkness is cheap
Christmas is now upon us and another year has flown by. Last night we sat in our little “snug room”, watching the snow fall outside and musing upon the past 12 months. My husband is a fellow solicitor and the head of a legal aid practice. When I asked him to forecast what might be coming in the next twelve months, he didn’t think twice.
“Most likely there will be savage cuts to the legal aid budget: crime, mental health, family… Who knows how bad it will get.”
His firm is nearly 30 years old. I look back through time and remember the unrelenting work that my husband and his partners (including me) have put in over those years, to build a practice that serves the poor and needy of Leeds. Things were different then. I could get an emergency legal aid certificate and an order removing a violent husband from his home in the local Magistrates court, serve it on the husband myself and lodge a copy of the order at the local police station. All done in a day, and all done cheaply with the minimum fuss and red tape. Fast forward to the present day, with a legal aid system now steeped in layer upon layer of costly bureaucracy and paper pushing, with the resultant increased costs, so that all that work could count for nothing. His firm, along with many others, has been granted a temporary reprieve courtesy of the Law Society, which stepped in to defend its family legal aid practitioners and halted the LSC in its tracks. However this is not the end, but the beginning.
It feels very much to me as if we have Mr Scrooge in government, saying: “Legal aid? Bah humbug!”
In truth, family law as we know it is primed for radical change. Lord Justice Wall recently described separation as a “serious failure of parenting”. An economist heads the Family Law Justice Review. The Centre for Social Justice, founded by government minister Iain Duncan Smith, sends out dire messages about holding marriage together at any cost as the answer. The signs are not good. Any system of law can be improved and ours could certainly do with tweaking, but who, ultimately, would benefit – or suffer most – from an extreme overhaul?
Speaking to other solicitors, I find that I am not the only one filled with foreboding. I expect that if A Christmas Carol: The Lawyers’ Edition was in the offing, with Kenneth Clarke, George Osborne or even our own Prime Minister as Scrooge, there would be plenty of competition for three of the plum parts: the Christmas Ghosts of Family Law Past, Present and To Come.
Looking to the past, I recall vividly the fiasco of the 1996 Family Law Act. The then government tried, with the best intentions in the world, to introduce divorce reform based on trying to hold a dead marriage together. It failed. For 16 years, successive governments didn’t dare go near the subject again. Now, with cuts at the top of the agenda, ministers have family law firmly within their sights once more. Does more of the same lie ahead?
As the Ghost of Family Law To Come, I would shift the focus to the “ordinary” couples who make up the bulk of most solicitors’ caseloads. Cases involving the wealthy have made the headlines this year, but “resounding” decisions such as that in Radmacher v Granatino will only ever affect a small number of the population. Instead I would show our Ebenezer Scrooge what happens to families, especially children, when couples whose marriages have ended are forced to stay together, forced to witness fight after fight and think it is all normal; when vulnerable spouses are forced to settle for pitiful amounts because they can no longer afford – and are no longer permitted – to fight for justice. And what if, solely to save money, couples are forced to resort to tribunals with rigid rules and no discretion? Haven’t we had sufficient experience with the Child Support Agency to know it could all end up as a disaster?
As my husband said, we will have to wait and see what happens. Dickens’ Christmas Carol ends on a high note, after all – and in this Lawyers’ Edition, the final chapter is not yet written. It would be good to see the retention of the flexibility built into our ancillary relief legislation, along with more emphasis on discipline within the courts in children cases. It would be good also if Mr Scrooge finally realised that cohabitation is here to stay, and introduced law for the thousands of disadvantaged cohabitants and their children. Now that would be a happy ending.
In the meantime, I wish all my readers a Merry (and humbug-free) Christmas.
Marilyn Stowe is the senior partner at Stowe Family Law. She blogs at www.marilynstowe.co.uk.