No more Legal Aid for divorce/children cases

[lalawyer]

Hi
Have been following many threads for some time but not posted before. Felt this was an important topic so here goes...

I'm a lawyer working in legal aid (doing domestic abuse/divorce/contact/residence cases) and a single parent.

The government have published a green paper, now out for consultation, proposing to make Legal Aid totally unavailable (i.e. even to those on benefits or low incomes) for divorce, financial aspects of divorce, residence and contact cases, except where there is domestic abuse involved.

This would mean the following clients would not be able to get legal aid

• those wanting to apply to Court to have contact/change living arragements for their children
• those on the receiving end of an application for contact/change living arragements for their children
• anyone wanting to get divorced
• anyone wanting to be represented in court for family finances on divorce to be sorted out e.g. to ask for spousal maintenance/house to be sold to release lump sum and so on.

Many cases can be sorted out in mediation but in my experience some just can't and it seems to me that to be on the receiving end of a court application and then not be able to get legal aid is potentially daunting.

Does anyone have any views on this?

Any responses much appreciated. Cheers.

How likely is this to happen?

Well its a fucking appalling misogynistic idea if you really want my opinion.

Nasty nasty proposal that yet again will hit women and children, especially the most vulnerable and less well-off ones, the hardest.

Hi portaloo
I think that depends to some extent on the responses to the consultation. A cynic might say the consultation is merely a hoop to jump through. Legal Aid is not as high a profile area though. My view is that the government will want to push it through.

Also for education, such as special needs appeals, thereby affecting another vulnerable group in society also likely to be in poverty: the disabled.

Lalawyer- if that goes through that is appalling. WTF do they think is goin to happen? People all mediate (like who does want to go through the legal process if they can avoid it) or maybe go back to 19 c position of families staying together as had to. Fucking mental

Sorry- fucking mentality that this isn't needed is baffling. Phone posted too quick

QueenOfFlamingEverything, now now don't be coy what do you really think.

With working in the profession is there not a risk that some in the legal profession will attempt to spin out legal proceeding as long as possible in-order to maximise their own profits.

Even if this was the case I hardly think it's fair saying "hey there's some dodgy rich layers and solicitors there creaming the system ... so lets punish the low paid and vulnerable lone parents by stopping legal aid." Yeah 'cuse that makes sense!

Quite. Thanks for your responses. Mediation is successful in the very many cases where it is suitable. Most people wouldn't choose to go to Court. But there are many cases when relationships break down and it isn't possible to address a power imbalance (falling short of domestic abuse) or facilitate discussion where one person is being totally uncompromising. If Court isn't available (except to those who can pay) in those cases where it is needed I don't quite know where those people and, crucially, their children, will end up.

HAHA white! Funny how many people think of fat cats!It's quite a sad image of lawyers, and a real problem that we are perceived in this way. It's one of the reasons why the government can push through these sorts of changes. I suspect it's no coincidence that there has recently been very misleading publicity about lawyers "overclaiming".

Legal Aid for most cases is currently paid as a fixed fee. Under the consultation these will be reduced by 10%. Rates of pay for qualified solicitors in my firm are less than the equivalent for other public sector professions. Eg newly qualified solicitor would be paid less than an NQT. A tiny minority of lawyers make large amounts of money from Legal Aid - makes us all look bad

I don't support a total withdrawal but certainly a tightening up is long overdue. Where the line is drawn will always be the hardest. Those losing out will naturally feel its totally unfair.

The problem is that the overall legal aid bill has spiralled out of control. And whilst I sympathise that those who go down the legal route feel they have no other choice, the fact of the matter is that they expect somebody else to pick up the bill. And "somebody" is skint now.

I can't think of any other country with such an extensive legal aid system for civil law and we cannot afford ours either. As a nation, we have to wake up to the fact that we cannot pay for many things that we'd like to.

Perhaps the future for family law solicitors will move towards no-win-no-fee? Or even solicitors doing a set amount of pro bono work like they do in the US? Who knows?

Finally, one of my good friends is actually a family law solicitor so I know its not all Porsche's and pink champagne. The image of fat cat solicitors is like the idea that all bankers are getting million pound bonuses. Or that teachers all sit on their arse all day. Simply not true.

They are not proposing to withhold legal aid for anyone suffering from domestic abuse, did I get that right?

But surely almost everyone who files for divorce has been the victim of domestic abuse (emotional abuse) otherwise why would they be divorcing in the first place.

Can't people get around it that way?

Of course, in the case of adultery if the man commits adultery then thats domestic abuse isn't it? from an emotional viewpoint.

I get the feeling that most of the cases that end up in family/finances court are as a result of dA or mental illness, often people don't realise.

Also is there a level of domestic abuse, ie is it just physical abuse or emotional abuse, what evidence do you need etc, that is the bit that worries me, I had no idea that I had been suffering emotional abuse during marriage until well after it had ended, and I have only got an anti harrassment order, it concerns me for people in the future really. I didn't get legal aid, I am now in debt and had to self represent.

The system needs tightening up and speeding up to avoid this very very common scenario that costs tax payers a fortune.

Parents split.
Non resident wants contact.
Resident parent claims DV and is automatically given legal aid.
Time passes, paper flows, costs are escalated.
Finding of fact occurs and things are proved or not proved.

The time passing is an abuse of the system, this can be years.

If there was a clause that said something like 'show evidence of DV within a month or lose the legal aid' the money saved could be ploughed into speeding up the system.

I'm doing a div at mo on legal aid so hope I just scrape thro b4 this comes in if it does.
I went to a mediation assessment and described the last few years of my marriage and the solicitor himself told me my case was unsuitable for mediation (which I knew really but didn't relish the thought of court) and described the reason for not doing mediation as domestic abuse.
I don't know whether I did experience domestic abuse or not - it was certainly truly miserable - perhaps I don't want to know.
I couldn't afford to divorce if I didn't get legal aid but I feel it's important that I do get divorced for myself and DC to feel we are totally free of the X as well as the financial aspects.
Niceguy2 You certainly are a natural Torie aren't you?
I'd just like to point out that I have worked for almost 30 years and paid an awful lot of tax in that time. No doubt I will for the next 20 or so too. If I could have diverted some of my tax into legal insurance would it be any different - other than less efficient - than paying tax then drawing on communal pots when needed?

Well, a range of views there - interesting thank you.
Domestic abuse is defined in the proposals but would not include emotional abuse arising from one person's adultery. I think much emotional abuse would probably not fit with the criteria, unless in combination with physical abuse.

Interesting point niceguy about no win no fee. In family cases we try to avoid the idea of 'winning' becuase there are really no winners when families go wrong. The family law rules try to avoid 'loser pays the costs' and so no win no fee doesn't seem feasible to me.
Some have suggested divorce insurance i.e. a policy which pays your legal expenses if you separate. Doesn't sit all that well with the wedding package .

Mummie, you are right about DV/mental illness, but also people often are (understandably) angry and grieveing when their relationship goes wrong and it affects their decision making. I bet, as well as the expense, it was awful representing yourself in that kind of case?

JBellingham - are you suggesting Legal Aid should not be available in DV cases where children's welfare is at risk? In the scenario you describe, it is the law which says there should be a fact finding hearing - nothing to do with whether Legal Aid is available. Where violence has been alleged and then denied by a parent applying for contact, the Court will usually direct a fact finding hearing to establish what has happened. I can assure you, neither party automatically gets Legal Aid - it is subject to a strict assessment of means and merits. Evidence is then gathered eg from police or other witnesses, medical evidence and so on. This does take time, but not years - unless the case is hugely complex. The Court will review the timetable and do its best to fix a date as soon as possible (which can be difficult - but this is nothing to do with the availability of Legal Aid, rather the availbaility of Court time). Time passing is nothing to do with the availability of Legal Aid. If there is no process like this how can the risk of violence to the child and resident parent properly be assessed and managed?
Where there is a fact finding, surely it is essential for both partties to be represented if at all possible. We would not expect a case of assault to proceed through the criminal courts with injured party and defendant cross examining each other would we?
I wonder whether your issue is that the availability of Legal Aid enables people to pursue a false case eg making false allegations to slow down the process of contact happening?

I am suggesting that if you say the kids have witnessed DV and it has affected them then come forward with proof within a month or else your legal aid is revoked. The delay affects all parties (esp children and non resident partner) when it is used as a delaying of contact tactic. This will allow more money in the pot to fund genuine DV cases to their conclusion.

OK so the scenario is-
Parents split.
Non-resident parent applies for contact, hearing date is set, usually within about 4 weeks.
Resident parent receives appplication, goes to solicitor and applies for Legal Aid (before the hearing) Tells solicitor at this stage there has been DV and is opposed to contact. At first hearing solicitor informs court of DV allegations and timetable is set for fact finding. The client has done what they can at the earliest stage to put the allegations before the Court.

This is what actually happens in my experience in virtually all cases where DV allegations are made in response to an application for contact - in other words it would fit in with your suggested timescale without the need for threatening to withdraw legal aid.

I have to say that if someone raised allegations of DV at a later stage in the case e.g. after contact was already happening then a court would be somewhat sceptical about this and in my view would be reluctant to change the track of the case to a fact finding. There will of course be some exceptions to this e.g if the allegations are serious and the victim can explain the delay. I don't think a blanket revocation of Legal Aid would actually make the difference you suggest. If a fact finding was needed at a later stage this would require an application to extend the terms of the client's Legal Aid and the LSC would require an explanation of the delay too. It is not actually easy to get an unmeritorious application past the LSC.

It is the obtaining of proof that takes the time. Corroborating evidence could be obtained from police, GP , other witnesses etc. It's hardly reasonable to revoke someone's Legal Aid just because their witnesses are tardy or the GP slow to respond to a request for medical records.

If I could have diverted some of my tax into legal insurance would it be any different - other than less efficient - than paying tax then drawing on communal pots when needed?

Well firstly yes, I admit i am a natural tory. That's because it seems Labour are not interested in the idea that you have to live within your means. I briefly considered changing my allegiance to the Lib Dems because of their sensible views on tuition fees.......so glad I did not now.

The thing is, where is it written that the government should pay legal aid? I don't see other countries pouring billions into this. Go to America, go to China. Doubt you'd find any govt help there for divorces.

But as I said earlier, I don't think a total withdrawal is appropriate but certainly we need to spend less.

Niceguy, it's part of the welfare state really isn't it. Whether you're in favour is generally going to be linked to your views on that. Similar arguments could be made for NHS, education, provision of social services etc. I suspect Legal Aid is not seen as important because, unlke the NHS or education, many people don't need it or come into contact with it (lucky them )

We could spend a lot less in the public sector generally, by changing the focus from measurement and paperwork, and instead creating a system which enables workers in the public sector to get on with their jobs.

the fact that mediation won't work in many cases is evidenced by the fact that so many cases fail to settle at fdr

not that that is actual mediation (because the judge is not a mediator) but it is (or should be) a very good judicial indication of what might happen at final trial and whose position is untenable or unreasonable. a judicial knocking of heads together.

many cases DO settle then or shortly thereafter but there are lots of cases that go to trial because either there are tricky issues or one party is digging heels in. The party doing the digging is almost always the more financially advantaged one. Will this be disproportionately unfair to women? Almost certainly.

this sounds like great news to me.

i have a pathetic xp who abuses the legal aid system. the whole benefits system actually, claiming incapacity benefit whilst he works off the cards.

he sees his son for a while as i have never refused contact and tried my upmost to keep it consistant but then he gets bored or whatever and disapears. after on average of a year he feels guilty and i will end up with a court application for contact. never mind just telephoning me.

i am a hardworking single mum, i dont claim any benefits or recieve maintenance (apart from the paultry £5 a week taken from his giro)and am on the borderline so i cannot claim legal aid. everytime i have to go to court it completely wipes me out financially. my son is 6 and we have been in court 5 times. the last time the judge really told off my ex but now 4 months has gone by with no contact and im just waiting for another court letter to fall through my door.he is not serious about having a relationship with his son he just likes to play the poor dad who is 'not allowed' to see his kid.

i have considered representing myself next time because i cannot take the financial strain anymore and at the end of the day im not doing anything wrong, id love my son to have regular, consistant contact. maybe this will make him see sense and realise he cannot abuse the benefits system anymore

NJHC, I think you should self represent the next time and you can ask for an order that stops your ex from making anymore applications, five times in six years too much!

mm, what a coincidence, a solicitors letter arrived yesterday wanting to resume contact.

are there any family law solicitors out there willing to give me some basic advise on a few things please? basically just about mine and my sons rights, i dont want contact to stop just want to put an end to him continuously letting him down once and for all.

thanks

Niceguy... even third world countries have systems in place to provide legal help to those in need.

As far as I'm aware the going rate for legal advice in England is about £18 per every 6 minutes. At roughly £3 per minute, I worry particularly about one of the implications: SAHMs and SAHDs who may end up poor as hell when the marriage breaks up.

No job, no means to defend themselves, whoever has the financial means is the one who is calling the shots. That can't be right... can it?

Funnily enough, mediation is "contraindicated" where there is a history of domestic violence. So talking about leaving the most vulnerable undefended..

Niceguy that was my point (albeit made rather obliquely) the GOVERNMENT DON'T pay legal aid - we do the taxpayer.
I have already paid tax for years and years, so why should I not get help now when I need it, via legal aid? It's MY money!