A family affair

Consider this scenario: a couple get divorced, and the father applies to the courts for residence (primary care) of their four children, who currently live with his ex-wife. She has a mental illness: it does not negatively affect her parenting and, with the help of a lawyer, she could demonstrate to a judge that she cares well for the children. But while her ex-husband can afford a lawyer, she cannot. So she is forced to represent herself in court. Alone, in a nervous and vulnerable state, she must face questions about her mental health from her ex-husband’s barrister, whose job is to undermine her case.

If the government’s proposals go ahead, many parents could soon find themselves in this situation. On 6th April new rules come into force designed to encourage people to settle divorce, child residence or other disputes outside of court. So far, so good—but this is just the first in a series of proposed reforms, many of which will cut the numbers of people entitled to legal aid in family disputes. The government says this will make the system fairer, more cost effective and, according to Justice Secretary Kenneth Clarke, legal aid “is an obvious place to start tackling deficit problems.” The reality, however, is that many vulnerable people will no longer have access to legal help at one of the most emotionally challenging times of their lives—and it won’t save money, either.

Under the new plans, potentially coming into effect later this year, legal aid will be granted in private family disputes only where there are allegations of domestic violence. (Currently, it is granted on a means-tested basis.) So if you are a parent who cannot afford a lawyer and you were fortunate enough not to be in a domestically abusive relationship, you will have no option but to represent yourself. Or to make a false claim of abuse.

Even in cases where domestic violence is raised, the only party entitled to legal aid will be the alleged victim. While all victims of violence should be protected, denying the accused his or her right to legal representation creates a complete inequality of arms. Kenneth Clarke has stated that legal aid will “still routinely be available in… family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm.” But there is no such assurance where people face losing contact with their children.

Equally worrying is the fact that, without legal representation, a victim of domestic violence can be cross-examined by the perpetrator. Inevitably, this will discourage people from speaking up.

Perhaps most frustrating of all, the cuts are unlikely to do what they are supposed to: save money. Those of us who practise at the Bar are all too familiar with the extra time and effort required in cases where a person represents themselves. With no legal training, a limited understanding of the court process, a completely subjective interest in the outcome and no expert advising them when it is in their own interests to settle, these “DIY litigants” exert a vast drain on court resources. With more of such cases clogging up the courts, David Allison, chair of Resolution, the association of family lawyers, warns that the government risks “creating an expensive mess that will cause misery for huge numbers of families and children.”

In order to cast the plans in a positive light, ministers point out that everyone must now attempt mediation before taking their case to court, unless there are issues of domestic violence or child protection. Yet anyone who has been to court knows that very few people want to be there. While mediation has numerous benefits, there are many cases for which it is simply not suitable. Take the father whose ex-wife refuses point blank to allow him to see their children; the mother whose boyfriend keeps threatening to abduct their children from the country. It is naive to think that these issues can be resolved through mediation alone.

Britain prides itself on free access to justice for all. It is one of the bedrocks of our democracy. These proposals directly challenge that access. Protest outside legal circles has so far been limited—perhaps because lawyers are popularly perceived as fatcats who charge exorbitant fees. But it is not the privileged classes who will be impoverished by these cuts. By denying people on low incomes the funds for legal representation, we are denying the poorest in our society equal access to justice. As Stephen Cobb QC, chairman of the Family Law Bar Association, puts it: “This is not the type of justice that a civilised society should expect.”