By Sonny Patel
The Legal Aid advice scheme was introduced after the Second World War as part of the welfare state. As well as access to healthcare, education, social security and housing, it was recognised that equality of access and the right to representation before the law was fundamental to a just society.
However, access to free legal advice is about to be to be hugely restricted. Legal aid will be retained for certain classes of case but imminent changes to the law will scrap legal aid for social welfare law, and almost all private family law matters which includes advice on divorce, contact with and residence of children and finances arising out of divorce.
In the original proposals, Kenneth Clarke, Lord Chancellor and Secretary of State for Justice suggested that the types of dispute from which legal aid will be cut do not necessarily require any legal expertise to resolve and that people should learn to manage their legal disputes by using undefined ‘online resources’. From the point of view of a solicitor who has navigated the complexities of countless family disputes this is a laughable statement. The new, consolidated Family Procedure Rules published in April 2011 were designed to simplify and consolidate family law procedure, but the rules and accompanying documents run to in excess of 800-plus pages. Add in over 50 pieces of complex legislation that can apply to family law disputes and a vast body of case law, and it becomes obvious that to ask a layperson to manage their own family law dispute, in a state of heightened emotion, is unrealistic.
When people are denied access to a lawyer, there are very real risks of injustice. Just one example is when, in the heat of a dispute, false allegations might be made by one parent to prevent the other from seeing the children. If such a case is not handled correctly the relationship between that parent and the children could be severed permanently.
In addition, the family court system is likely to grind to a halt as time and resources are absorbed by unrepresented litigants in person, some of whom will be less likely to negotiate out of court and will make misguided applications. Consider the real life example of a litigant in person who, subjectively convinced of the justice in his case, launched an extensive appeal against a final financial order. His application failed. He wasted two days of court time, and he was ordered to pay the costs of the hearing which were over £10,000.
The cuts to legal aid are seemingly inevitable. For all users of the family courts the changes to legal aid will have far reaching consequences.
Sonny Patel is a specialist family law solicitor at Seddons, a Central London law firm specialising in property, disputes, people and enterprise. Based on client feedback Seddons are Legal 500 listed for the “first class” service that their family department provides. twitter.com/SeddonsFamily
Nice article. It shocks me that while every other government cut seems to bring out a powerful lobby in protest, this continual erosion of the right to legal representation seems to proceed without provoking much complaint, either from the commentariat or the wider public. The Great British Public has variously been outraged at the prospect of forests being privatised, Green Belt being built on and libraries closing – all worthy concerns – but doesn’t seem much exercised about people on low incomes being deprived of the tools needed to have a fighting chance in the courts, whether proving their innocence or taking on people or businesses much more powerful than themselves.
Shockingly, this drip-drip of legal aid cuts actually began under the otherwise high spending Labour government in the boom years.
This is a much needed contribution to a neglected debate.
These cuts are certainly shocking and suggest that many of Britain’s less affluent individuals will now be denied access to justice and, yes, it is surprising that there hasn’t been more protest to them.
Not only could parents be denied the possibility to see their children, but it will be far easier for spouses to hide assets when judgements are made on divorce settlements which – according to the recent research conducted by Grant Thornton – happens in one third of all such cases.
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