Head of Family Law and in-house counsel at Kuits Solicitors
In an attempt to reduce the legal aid UK bill by £350 million per year, huge cuts came into force on 1 April 2013 under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Family law cases were hugely affected and now only those which involve domestic violence, forced marriage or child abduction are funded.
The Ministry of Justice have explained that the cuts to legal aid are for the benefit of the taxpayer ‘who ultimately pays for it’ however now the changes have bedded in many are not happy. Criticising the government’s decision Elfyn Llwyd MP argues, ‘It is clear to us that these reforms have everything to do with saving money- yet the cost to society is overwhelming.’ Ultimately it seems that any financial savings have been overshadowed by the serious loss to those who would have previously been able to rely on legal aid.
As a result of the cuts many who cannot afford legal representation feel that their only option is to represent themselves.
Commenting on this Court of Appeal judge Dame Elizabeth Gloster admitted that she was ‘horrified’ by the number of litigants without lawyers. According to Jo Edwards- the chairwoman of Resolution, two thirds of cases in the family courts now involve at least one side who does not have a lawyer.
The National Audit Office estimates that the increased level of litigants in person will cost the government £3.4 million a year due to the fact that cases without legal representatives take 50% longer and therefore clog up the system and cause delays.
Unfortunately the financial repercussions are not the only cause for concern.
The welfare of any child involved in a family law dispute is meant to be the paramount consideration however this is likely to be prejudiced by any delay.
It is not only the children who are involved that may suffer from their parent’s lack of legal representation. The individuals representing themselves are also likely to feel the negative effects.
This was highlighted in the case of Re H[1]. When this case came before the court serious concern was raised that the mother- who had speech, hearing and learning difficulties, was without legal representation. It was felt that her human rights were at risk of being violated. The father had legal representation and was also supported by the Local Authority.
By the time the case came to final hearing the mother had legal representation on a pro-bono basis but as was highlighted by the judge, this is nothing like having full representation. The court stated that although the lack of legal aid had not prevented the mother from having physical access to the court, it had certainly prevented her from having intellectual access. The potential for a significant imbalance of power between parties in these type of cases is very clear to see.
The negative repercussions of the legal aid cuts explain why so many people have expressed their disappointment.
Lady Margaret Hodge, the Chairwoman of Public Accounts Committee states, ‘The Ministry of Justice is meeting its objective of cutting spending on civil legal aid but is doing this without knowing what the knock on effects might be for people needing advice.’
But the Ministry of Justice do not seem to accept that there is a problem and speaking about the high number of litigants in person they argue, ‘A large number of people have always represented themselves in court and we provide information and guidance to help them.’
Speaking ahead of the cuts Lord Neuberger, president of the Supreme Court predicted that the lack of legal aid would lead to people taking the law into their own hands.
He claimed that this would be borne out of frustration and lack of confidence in the system. Equally as problematic is the possibility that some people are simply putting up with unfair arrangements as they feel that they do not have any other option but to suffer in silence.
Taking into consideration the negative effects of the abolition of legal aid, Resolution suggest that the government should fund an initial solicitor’s meeting for those who cannot afford it. This would enable separating couples to have their legal options explained to them and may also encourage them to use mediation. However mediation is not suitable for all cases and this highlights why a large number of people will lose out from the legal aid cuts.
The reality of the situation is that although the government may have reduced the legal aid bill by £350 million per year, the detrimental impact of the cuts on society could mean that this is a completely false economy.
As Resolution’s Dispute Resolution Week comes to a close, Katie McCann, head of Family at Kuits states, ‘The world of family law is in a state of flux following the cuts to legal aid and the fluctuations we have experienced in the economy, hitting the country’s pockets hard. However we must continue to do the best that we can for any client that walks through our doors. In family cases alternative dispute resolution should always be considered first before entering the realms of court proceedings and clearly that is the way the profession is being steered. Earlier this week I wrote about the benefits of mediation- if a better way can be found to bring family disputes to a close then we must help clients to find this, but that does not solve the ongoing issue of costs. Alternative dispute resolution is not always cheaper than going to court but in the vast majority of suitable cases, it certainly does offer a less stressful and more empowering path to the resolution of disputes.’
[1] [2014] EWFC B127
Follow Katie McCann on Twitter – @kuits_familylaw