The ban of legal aid and its repercussions

GravelThe Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into effect in April 2013, effectively removed legal aid for the majority of family law cases. It is now only proven victims of domestic violence, or cases concerning challenging care orders being imposed by local authorities that remain eligible for legal aid. Therefore, most people will find themselves in a situation where they will have to pay legal bills from their own pocket.

The knock on effect from this significant piece of legislation is widespread. People are putting off dealing with their legal issues. Where this involves family relationships such as divorce or child contact matters, this can have a serious emotional impact on adults and children. Instead of delaying matters, people are turning to family members to borrow money. People are borrowing from banks and on credit cards and in extreme cases, out of sheer desperation, people have turned to loan sharks. As solicitors we could never advise this course of action and will talk to you about your funding options available. This could include an approved credit arrangement through a recognised body, designed specifically for family law matters.

A further alternative is for people to represent themselves and more and more people are going down this route in order to avoid legal costs altogether. Whilst from a financial perspective for the individual this may feel like the best or only option, the impact that this is having on the court system is considerable. But why should that be of concern to the individual who just wants their case dealt with?

Is the family courts system at breaking point?

The survey for the Bureau of Investigative Journalism and The Independent on Sunday, in partnership with the Magistrates’ Association, surveyed a sample group of 461 magistrates sitting in a variety of courts across the UK.

The survey found:

  • 46 per cent of those seen by magistrates in the private family courts represented themselves;
  • 97 per cent of magistrates who saw a person representing themselves believed that such self-representation had a negative impact on the court’s work;
  • 62 per cent of magistrates said that this has a negative impact on the court’s work most or all of the time.

Judges, magistrates and lawyers have criticised the new legislation. As a direct result of the demise of Legal Aid, they are now working in a clogged up, under-resourced and slower court system. This means that your case will take longer to be heard and reach conclusion, a fact that troubles the judiciary and lawyers alike as they are aware of the negative emotional impact that this has on the family involved, particularly the children. Let me remind you that we are not just talking about divorce cases here where the impact could be financial as well as emotional, but consider the disputes between separated parents about with whom the children should live. There may be allegations of abuse or neglect, there may be mental health issues, there may alcohol and drugs issues to mention but a few. These issues all need thorough investigation and professional opinion, which takes time to obtain in any case but with throw in an over-stretched court system and delays are likely to increase. Judges also express their concerns about the ability of vulnerable people on a low income from accessing justice. Not all people are capable of representing themselves, and if they can’t afford to pay for representation, where does that leave them? Access to justice for all is one of the founding principles of our legal system but the disappearance of legal aid is seen by some to directly contradict it.

Some observers would go so far as to say that the the family courts system is at breaking point. It is argued that the cuts to legal aid have deprived separating couples of funding for representation and legal advice, leaving them to navigate their own way through the courts as they attempt to reach settlements on complex, emotional issues of child custody and division of family assets.

The result of the cuts is that as many as two-thirds of cases working their way through the family courts now involve at least one side which has no lawyer to provide help.

What are the effects on families?

One trend is that people who represent themselves are not tending to negotiate with each other outside of the courtroom as they often do not know how to or one party is simply not receptive without a lawyer to encourage, explain and advise. Instead people are relying on the judge to impose a decision for them, sometimes not realising that they can bring the court process to an end at any point by reaching a compromise between them.   For people with legal representation, a judge-imposed decision is always the last resort and lawyers will try their level best to reach a settlement out of court on behalf of their clients.

In children related cases, the sad reality is that many parents are giving up and not seeing their children because they are unsure how to go about pursuing matters through court. Mediation may be suitable for some families; however settlement is not always reached in this way. Parents can be so entrenched in fighting their own wars that the children are sacrificed during mediation proceedings and court cases. Without the protective control of a legal representative extract the issues that require legal resolve, cases can go off on the wrong tangent wasting court time and adding to the emotional trauma for all those involved, including the children.

A single initial meeting with a lawyer will provide you with clear guidance about your legal options, allowing you to choose whether self-representation is for you or whether you require full legal representation. We can talk to you about providing you a service that falls somewhere inbetween in order to keep your legal costs to a minimum but to ensure that you are equipped with the right information and advice before representing yourself in the courtroom.

If you would like to discuss these issues, or any other family law problem, please contact our team on 0161 969 3131 or via intouch@slaterheelis.co.uk for informal, friendly advice and support.