AS a family lawyer, I deal with cases that often encompass deep-rooted emotional issues and complex financial problems. People turn to family lawyers at a time of need, where the outcomes have a lasting impact on the individuals, their families and wider society.
Yet it is in the family law courts that the most obvious impact of the Ministry of Justice’s (MoJ) actions has been felt. The bulk of the Legal Aid, Sentencing and Punishment of Offenders Act cuts fell on family law cases and the National Audit Office (NAO) reports a 30 per cent increase in people representing themselves in the family law courts. The NAO estimates that this has cost HM Courts and Tribunals Service an additional £3m per year, plus £400,000 in direct costs to the MoJ.
We do all we can to mitigate the impact of these cuts by offering pro-bono advice, promoting mediation, where appropriate, and encouraging alternatives to the court process, such as arbitration.
A recent study by Grant Thornton showed 89 per cent of lawyers surveyed have never referred a case to arbitration, despite 76 per cent claiming they would recommend it as a method of settling matrimonial disputes. Around 59 per cent of lawyers in the survey did not think the Government’s efforts to promote mediation would lead to an increase in its use.
People who choose to represent themselves – known as “litigants in person” – are among the most vulnerable of those seeking legal justice. The daunting experience of going to court on their own and the devastating, highly emotional, personal issues around which their cases often revolve have led one expert to describe them as “unexploded bombs”. But their numbers continue to grow. The reduction of the legal aid budget by £350m saw professional support withdrawn completely in cases of clinical negligence, education, debt and family disputes.
According to the MoJ, half a million people a year will lose the right to legal aid funding. However the Legal Action Group, a campaigning organisation, says that as many as 650,000 people could find themselves with no one to turn to.
The Government has acknowledged it is the family law courts that will be hit hardest by the cuts. Tackling some of the toughest cases, from childcare to divorce, the courts will see 250,000 cases a year taken out of public funding.
The savings are questionable, as people seek to argue their own cases in court without accurate information or understanding of the law. Judges are obliged to tread carefully to ensure justice is done and the whole process takes so much longer. As a result, the courts are log-jammed.
The system now resembles the NHS, both oversubscribed and underfunded. It was never designed to cope with the number of customers coming through its doors. Paying court staff overtime to catch up is surely a false economy.
Every time my clerk attends the court counter, there is a queue of litigants in person asking the court staff for guidance. Not being able to offer advice, the common response is “sorry, we are not able to help you, you need to see a solicitor”, creating a Catch-22 that fails all parties. The queues will only become longer.
The Law Society recently supported a challenge over the lawfulness of changes introduced by the Government to regulations which set out what evidence victims of domestic violence (whether male or female) have to provide to get legal aid for family cases.
These regulations can prevent such victims from getting legal aid, even when it is clear there has been violence, or there is an ongoing risk of it. It was argued that this was not what Parliament intended. The evidence required can be extremely difficult for many people to get and in many cases is subject to a two-year time limit – although perpetrators may remain a life-long threat to their victims.
Although access to justice is vital in these cases and legal aid is therefore a lifeline, last week the High Court rejected the challenge ruling that because the purposes of the original legislation were to limit civil legal aid expenditure and to promote means of dispute resolution outside of court, the changes were consistent with the pre-existing law.
How can society have confidence in a legal system where representation is based on the size of your wallet and not the need to be heard?
The changes to legal aid have had wide-ranging and unforeseen consequences and the issue requires urgent review if we are to avoid lasting damage to society.
Lyn Ayrton is managing partner of Leeds-based law firm Lake Legal.