Guest post: Legal aid cuts - 'the family courts have become a two-tier system'
Following cuts to legal aid, it has been revealed that 46% of parties in family proceedings are representing themselves. Here, solicitor Liz Fisher Frank argues that we now have a two-tier system, where parents who can afford lawyers are in a much stronger position - and that this is a threat to both justice and the well-being of the children involved.
Solicitor and author
Posted on: Fri 11-Jul-14 15:41:02
(28 comments )
Imagine you're finally divorcing the husband who has sapped your confidence and made you feel ignorant and worthless for years. Now he wants to take your daughter, aged ten, to live with him in New York. Next week at the hearing, he'll have a solicitor and a barrister to represent him – you will have no-one.
Or, you're in court. A pinstriped barrister sighs loudly: "I think what you're referring to is on page 417 of the bundle Mrs Jones," she says. Getting hotter and redder, you quickly leaf through the documents. "I want to say something about the Welfare List," you say.
"Welfare Checklist, I think you mean," the Barrister says slowly and deliberately. "Where's this document in the bundle?" she asks.
"Oh it's not," you reply, "it's in my handbag, though". You pull a crumpled mass of papers from your bag. "I read this last night. I sort of think it's relevant. It's the middle bit. I've put a star by it, it's says, er…"
Now imagine that you dropped out of school at 14, and you struggle to read. You're confronted with a pile of court papers that seem to relate to your son and your ex. You've been told you have to write your 'statement of evidence' for the court.
Or you're 22-years-old, your wife has just died and you're only able to speak a little English. Her parents think your daughter would be better off with them – they would give her everything they gave their daughter - and they've got the best legal minds to help them fight you all the way.
All of these people are Self-Represented Litigants – that is, people who cannot afford legal advice and representation, and have to go it alone.
Before April 2013, legal aid was available for all parents in contact and residence proceedings concerning their children. But in an effort to cut £350 million from the legal aid budget, along with some other areas of law such as divorce, welfare benefits and employment, access to legal aid in this area has been pretty much abolished. This means that what was once more or less a level playing field has now become vastly unfair.
Parents should not be expected to become quasi-lawyers, and there should be equality of arms. The system should not be evolving to engender delay – especially when we know this is likely to be prejudicial to the child.
In a recent survey by the Bureau of Investigative Journalism in partnership with the Magistrates Association, 46% of parties in private family proceedings represented themselves, which shows a 40% rise from December 2012 to December 2013. In the survey, 97% of the respondent magistrates said they believe people representing themselves has a negative impact on the court’s work. The magistrates voiced concerns about delay, mis-balance in legal battles and the possibility of injustice.
It's clear that we are regressing into a two-tier system. If you've got the cash, you're fine; your lawyers can advise you on court procedures and your chances of success, so your expectations are managed, and you’ll know what you’re in for. Your lawyers can prepare your evidence and then negotiate on your behalf. This is particularly useful when every direct contact with your ex is a mountain that you are nowhere near yet able to climb. Your lawyers can then stand up and present your case in court too, using their years of training. They can call witnesses, analyse evidence, and cross-examine. Using the legal resources they have access to, they can cite relevant case law and legislation.
But if you can't pay the fees, you get none of this. You will have to resort to a few books and whatever information you can find online to learn about procedures, filling in forms, submission of evidence and advocacy in court. For some, this may well be fine. But for many, it will be a long way from that. Some groups, such as those with learning and other difficulties, those with limited English, and, probably, women as a whole (who generally have less disposable income than men, especially after the breakdown of a relationship) are disproportionately affected by these cuts.
Making decisions about children is one of the court's most crucial roles. But with all best intentions, it is difficult to imagine that - where one party has legal advice and representation and the other does not - decision-making will be unaffected.
Whilst it is understandable that cuts in legal aid had to be made, it is difficult to accept that such cuts are right or fair in cases about children. Parents should not be expected to become quasi-lawyers, and there should be equality of arms. The system should not be evolving to engender delay – particularly when a key principle of The Children Act 1989 is that delay is likely to be prejudicial to the child.
We cannot let this two-tier system establish itself and become the norm. We must put children at the core, and make cases involving children in our family courts absolutely fair – because, without fairness, children will ultimately be the ones who suffer.
By Liz Fisher Frank
Indeed. I was the higher earner (10x his income) and I paid my solicitor and his solicitor. That is fairly common when you have joint accounts only and are divorcing.
Perhaps the way forward is to allow a wife to claim against her husband for her legal costs. Why should the state pay for those marital disuputes. I struggle to find sympathy for the attitude that assets are hard fought for so the tax payer must pay legal costs. SAHM's should be aware of the financial vulnerability if a marriage breaks down.
It still excludes you if you have assets but no income. Fits many stay at home mums who have the family home to keep the stability for the children. But thank you for posting the link.
https://www.gov.uk/check-legal-aid - this is an eligibility checker.
Purple - that's interesting. Where could I go to look up criteria? I have a house (so assets) but very little income.
Legal aid is still available for family mediation - just for info as this is not always widely known.
I am at a loss to understand JaneParker how women working full time outside of the home as well as inside the home will aid the cause of feminism. Neither do I understand your assertion that both partners working full time in a marriage ensures equality.........there is far more to equality in a relationship/marriage than full time employment. The essence of feminism is about choice as far as I'm concerned.
I know of a case similar to the one you quote but all situations are different and now with the cuts in legal aid, a woman who has stayed at home to care for the kids and house etc and no doubt enabled the man to go out to work without worry of juggling employment and childcare, will find herself in the same situation as tiredandsadmum and how can that be fair.
I am just about to go back to court again. My ex wont compromise on any arrangements (through mediation or other). So it is always his way or no way. He works (very high paid); I don't currently (retraining). So I am expected to fund my court costs through selling assets whilst he uses income. It is financial abuse and very inequitable. How this benefits my primary school age children I don't know. The stress is almost unbearable at times. I wish the mediators had more teeth. At the moment they are a formality and can effectively be ignored.
I would agree with stricter guidelines laid down as to the fair division of assets and maintenance. But I do not agree with legal aid for long running disputes between couples over finances and other arrangements. I just don't see that as being the tax payers responsibility to finance.
As others have said the previous system was very unfair and two tier. Hard working father on �25k a year could not get legal aid and his wife who never did a day's work in her life and sat around at home all day doing her nails, even when the children were at school gets fully funded help on legal aid. At least the changes will make women realise it benefits no one if they ever give up full time work. The changes should aid the cause of feminism and ensure more equality in marriages with both in the couple working full time.
The OP has written a very good post.
The cuts to legal aid have created a two tier system both in family courts and in criminal courts.
What happened to Nigel Evans is a good example of why we need legal aid. There was not enough evidence to convict him and his legal team successfully fought his case. However, Nigel evans could afford his legal team. What would have happened to the man earning £20k pa?
Nigel Evans argued that he should get his legal costs back after he was found not guilty (I think it was in the region of £100k), but he has no legal right to reclaim that money even though he was found not guilty.
I struggle to have sympathy for Nigel Evans because his party made these changes to legal aid and he didn't speak out against the cuts until it directly affected him but I worry about the impact of these changes on mr Average.
How would joe average feel if he was falsely accused of committing a crime and had to spend £50k on legal representation to reduce his chances of being wrongly convicted. He might have to sell his family home, go into debt etc and then be left in financial ruins for defending himself against something that he didn't do.
Does that sound fair?
I read a story today in, I think, the Telegraph, that the legal aid budget is 100m underspent. Even under the Coalition's rules, they could reverse the changes to legal aid. But of course they won't, because they don't want anyone who isn't rich having access to justice.
This is why there is a "squeezed middle" that includes pretty much everyone who isn't either very, very poor or very, very rich: we now have to pay for vastly more things than we did even ten years ago, let alone a generation ago - and we have to pay enormous amounts for those things.
Housing costs + the death of the welfare state (a state oriented towards the well-being of all, rather than "competitive edge" <ha> and profit) = seemingly comfortable incomes - that are achieved through people working long, stressful hours and a diminishment of life-quality - disappearing into the vapour.
Everyone is frightened, stressed, insecure.
The erosion of the legal aid system is appalling, and is of a piece with the erosion of health and education provision.
The end of legal aid in marital disputes will affect me directly, and I am profoundly depressed about this.
I don't think legal aid for matrimonial disputes are a good way of using tax payers' money. I do feel sympathy for the people involved but I am glad legal aid has been cut in this sector.
peggyundercrackers I totally disagree with you and you have been asked to cite your evidence to your assertion that "too many lawyers became rich by it and abused the system and it was their greed that caused the changes."
The cuts to legal aid are nothing to do with solicitor's costs. They are to do with this coalition's determination to slash the budgets of all public services, civil and legal services ostensibly to cut the deficit and "balance the books" - BUT.....the financial crisis was brought about by the greed of the Bankers, not lawyers, or public servants or civil servants.
At the same time that misery is being caused to thousands of people through unemployment, and the people who rely on legal services, public services etc., the coalition are handing out billions of pounds to private contractors to run our schools, prisons, the Probation Service, and large chunks of the NHS to name but a few..........why? because they are concerned with profit not people - these private conglomerates make big profits which in turn benefits the shareholders of these companies. And at a wild guess I suspect members of the cabinet are quite probably shareholders, so it's a win/win situation for the fat cats.
They don't care about the unfairness of people unable to get legal aid and the two tier system that it creates, when one of the parents can afford legal representation and the other can't. The Bullingdon boys don't care about ordinary people, they don't understand them, they've never come across them, and to top it all they have the absolute audacity to tell us "we are all in this together."
So get your facts straight Peggy or provide the evidence for your assertion.
I'm a legal aid family solicitor so declaring my interest at the start, but the idea of legal aid solicitors being fat cats, especially in the last 10 years, is completely removed from reality. I would earn more in a much less stressful job should I choose.
I also disagree with the idea that the family law rules in this country are easy to negotiate. On paper, they look straightforward as far as law goes. But we're dealing with people, and not just people but love, children, money, domestic abuse, the list goes on. The tightrope of legal advice at the same time as emotionally supporting someone at their most vulnerable is, to put it mildly, a difficult task.
Having to tell people who come in to see me, desperate for help to see their kids or move away from an abusive partner, that they have to pay me fees that I couldn't afford to instruct me, genuinely breaks my heart. But a law firm is a business, just like a dentist or an accountant, and I am emp loyed by my boss to make a profit.
Most lawyers aren't 'fat cats' and - with the exception of a few high profile criminal QCs - were not getting rich on doing publicly funded work.
They were earning middle-class salaries for doing a demanding, highly specialised job. However the fees which you could claim for family work -were pinned at such a level that it was actually quite hard to make doing thejob viable. The fees were also paid by the Government long after the work had been done - sometimes years later. (Law firms have offices and have to pay rent. They need support/admin staff to function.) Even before the latest cuts to what could be paid for by legal aid, more and more firms were withdrawing from doing this kind of work because it wasn't financially viable. You have to pay your staff. You have to pay the bills.
Really it was rather like what was happening in the NHS - steadily cutting the resources available - so that the service becomes harder and harder to run.
I just want to say that the previous system was also two tiered. I notice the article portrays a David and Goliath battle of the poor against the well heeled. I know of a 'Goliath' with a middling train driver's salary. His ex could continually play silly beggars using the children if she wanted more money for beer, fags or bingo (and no I'm not joking). He had to pay a solicitor to respond to her needless applications and always had to back down in the face of this legal aid blackmail. I think the article should be a little more balanced. People on modest incomes have to iron out their difficulties as the can't afford the luxury of solicitors. Why should the poor be in a better position than the squeezed middle.
cuts to legal aid was the right thing to do - too many solicitors/lawyers became rich through it and abused it. It was their greed which caused the changes.
I wouldn't qualify for legal aid under this system or the old system. However, my high earning husband just walked out of the marriage. We'd spoken on the phone in the morning normally. That night he rang and said he wasn't coming home again.
He cut me off completely. I don't work. I have no income (with good reason; not bone idleness!) but all the usual outgoings, plus some contractors to pay as well.
I am absolutely floored by his decision. I did not see it coming. Guilty of ignorance. Punished by reality.
I have a solicitor who can see that in settlement terms I can honour the legal fees - I have some assets in my own name, but just now cashless. So aside from the direct court costs, everything is just rolling on until we get to the end. She has put a charge against my assets - quite reasonably.
Everyday, someone starts a post to the effect of 'utterly devastated: my DH has just left/is having an affair. You quickly realise wealthy or otherwise, the impact of being blindsided in this way, is the common factor here. Our emotions, our reactions, our feelings and our fears are absolutely equal.
We are utterly floored, utterly unable to function, utterly devastated. We are also scared shitless of the future. If there are younger children involved: being utterly bereft for them is the biggest burden.
I am acutely aware that it is the uniqueness of my circumstances that enables me to fight for my future. I can't do that on my own, and quite frankly: I hadn't got a clue about divorce, or my rights when he so kindly explained how we would get divorced (He keeps almost everything in my name, and everything in his name!).
Because I figured it was worth spending a few hundred pounds on a solicitor (and I could just about afford that) I am one of the luckiest women around.
But, that is my circumstances. What happens if your husband is an average earner? If not a low income one? Or a high income one with all the assets in his name only and he moves somewhere untouchable?
The reality is not only has your husband screwed you over. The law has too.
A few people may abuse the system, but the system also needs to protect the vast majority who need it to protect them.
I never thought I would consider myself lucky to be in my situation but I am.
And that is more by luck than judgement.
It's horrific and more a used woman will die. They will die because they have no affordable legal ways of parting from an abusive partner.
tired I feel for you, that sounds like an awful situation but surely that is the legal system relating to divorce generally, not the Legal Aid system. If I have read you right you would not have qualified for Legal Aid under the previous system either as you have assets.
I agree with you there is far too much leeway in our legal system for one troublesome partner to drag the other through appalling on-going anguish but I don't know the solution to it as I have no legal experience.
I know you cannot believe everything you read in the newspapers but there were suggestions made that the system was changed, largely, due to some of the legal profession and their charging practices. If that is true then the profession has done its clients a grave disservice
Interesting article. The current system lets financial and emotional abuse continue after the end of a marriage. The only person who suffers is my dc. It truly is disgusting. The legal profession play games with our lives. I don't think he or I will ever fully heal from the damage being done. Yes, I do have assets to pay for a legal team, but they were very hard fought for in the divorce whilst ex carries on, life as normal, earning a large salary. I am literate, well educated but the "interpretation" of our laws, totally lacking in common sense is what makes it impossible for a lay person to do well in family court.
Balia it's easy to say the procedures are straightforward if you are an educated person with experience of state bureaucracy. If you were in any way vulnerable, impoverished, illiterate or foreign, your access to justice would be non-existent.
Banning all lawyers surely just means judges have to take on a lot of the lawyer's role. My understanding is that keeping the judge separate from this process means that they are able to make an impartial judgement on the case. The reality is that the law is a very complex entity, and you need a professional to help you negotiate it.
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