Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Resolution (LA 41)


Summary

1. The Legal Aid, Sentencing and Punishment of Offenders Bill will drastically reduce the scope of civil legal aid. Legal aid will no longer be available for many areas of law including the majority of private family law, which is the focus of this paper.

2. We are not opposed to reform of legal aid. However, we have serious concerns about the Bill in its present form. In summary:

· We are opposed in principle to the Bill’s approach to the availability of civil legal aid. Access to justice is a basic human right and a mark of a civilized society.

· The cuts are draconian. In their current form, the changes amount to an attack on childhood and the family. They will strip away access to affordable justice to huge numbers of vulnerable families, depriving and penalizing the poorest and most vulnerable. The Government’s own estimate is that approximately 600,000 people (compared to 2009/10) will be impacted by the changes in scope across family and civil legal aid. 210,000 and 45,000 fewer private family cases will qualify for Legal Help and Legal Representation respectively.

· Many victims of domestic violence will be denied legal help because the circumstances proposed by the Government as evidence of domestic abuse are too narrow and will only be satisfied once there has been a fully contested court hearing and resulting injunction.

· Mediation will continue to receive funding. This is welcome, but mediation is not suitable for all cases. Other valuable non-court options appear to be ignored. There needs to be funding provision for cases where mediation is unsuitable or fails, e.g. where one party refuses to take part.

· Cutting legal aid for family law ignores the Statutory Charge, through which the state can recover legal aid funding in financial cases.

3. We are further concerned that the changes, which will have long-term and lasting costs and consequences, are ill-considered and rushed.

· The consultation that followed the launch of the Green Paper (November 2010) and the proposal to cut £350 million from the legal aid budget received an unprecedented 5,000 responses. 90% of these disagreed with the proposals. Yet the changes outlined in the Bill remain virtually unaltered.

· The volume of responses to the consultation is not the only indicator that the proposals are flawed. The Justice Select Committee and the Family Justice Review have expressed concerns.

Who will be affected?

4. Groups in need of legal aid, often from the poorest and most vulnerable sectors of society, will no longer be eligible. These include:

Parents who need legal help in tracing or arranging contact with their children.

Parents worried that the other will abduct their child to an unknown destination in the UK.

Many victims of domestic abuse, forced to mediate with violent ex-partners or represent themselves in court.

Cohabitants where one partner needs help to claim a share of the family home for themselves and their children.

Parents in private children cases where the court considers the case has an element justifying separate representation of their child.

People who need legal help to sort out their finances when divorcing, even on an emergency basis unsuitable for mediation.

People wanting to divorce or whose partner wants to divorce them.

Impact on families and children

5. The Government is underestimating the vulnerability of separating couples and their children. Under the changes, huge numbers of people will find it practically impossible to gain access to justice and legal help during one of the most difficult and stressful times of their lives, with devastating consequences on families and children. For many, losing family legal aid will be a cruel and unaffordable blow. (N.B. 95% of civil and family legal help recipients in 2009-10 were in the bottom two income quintiles.)

6. Legal aid will be available for representation in 34,000 fewer private law Children Act cases (75% of the proportion of existing cases). This will affect at least 34,000 cases involving children. As many cases will involve more than one child, far more than 34,000 children will be affected.

7. Children should see both parents where safe to do so. But under the changes, thousands of vulnerable parents going through the trauma of divorce and separation will be forced to struggle by without legal help – creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that harm their upbringing and wellbeing.

8. It is unacceptable to force families into situations where children lose contact with one of their parents. Yet this is what may happen in serious, hard-to-resolve situations such as those involving obstruction and implacable hostility between separated parents.

9. When mediation fails a parent will be expected to conduct their own application for contact with their child. This will include situations when a parent has no contact with their child but their ex-partner refuses to attend mediation or cooperate in mediation; or where there are significant compliance and enforceability issues relating to a court order. Enforcement of contact orders can raise very difficult issues for applicant parents and stark choices for courts, particularly around committal of a parent with care of the child to prison or a change of whom the child will live with.

10. Additionally, separated parents with primary responsibility for caring for children may not be able to obtain a fair financial agreement from their ex-partner.

11. The Bill fails to ensure adequate provision for dealing with financial matters on divorce where mediation is unsuitable or unsuccessful, including over urgent finance issues. E.g. there will be no legal aid available for advice or action to prevent dissipation of assets, despite potentially serious consequences such as loss of the matrimonial home and dependence on public housing. Women, who in the majority of separation cases take the lead role in protecting the child’s interests, will be particularly affected.

12. Emergency situations concerning children are often too complex and emotionally traumatic for people to negotiate and resolve without legal advice and representation, e.g. where a parent keeps a child after a contact visit. In such cases, people need advice and representation on rapid action, such as prohibited steps orders to prevent a child being removed from their primary carer. Early advice and representation can avoid a problem escalating to the stage of abduction (which would still be covered by legal aid but only for cases of international abduction, and not for abduction within the UK).

13. A new Director of Legal Aid Casework will have the power to allow legal aid for other services to avoid a breach of an individual’s rights to legal aid under the Human Rights Act 1998 or European Union law. The Committee may wish to probe the exact meaning of exceptional cases. The Bill makes no specific provision for exceptional access to legal advice and representation for the vulnerable with, for example, mental capacity, learning difficulties or language issues who cannot represent themselves.

Domestic violence

14. Domestic violence will be the main gateway to legal aid in private children cases, and the only gateway in financial matters.

15. In order to satisfy the circumstances required by the government as evidence of domestic abuse, all domestic violence related applications will have to go to a fully-contested hearing, increasing delay in resolving issues, expenditure from the legal aid and Court Service budgets, as well as the emotional trauma for the victim and their family.

16. In addition, it is unclear from the Bill whether there is provision for legal aid for victims to obtain initial legal advice and have a ‘warning letter’ written and sent to their abuser. This step is a pre-requisite for victims to qualify for legal aid in order to obtain a domestic abuse injunction. This will need to be clarified in the Bill, otherwise only those cases where the risk of violence poses an immediate danger necessitating a ‘same-day’ application to court for an injunction will receive legal aid.

17. The Committee will note that the circumstances proposed by the government as evidence of domestic violence to justify the granting of legal aid will be set out in secondary legislation. Resolution and many others are concerned that the approach proposed does not provide adequate protection for those issuing private family law proceedings after separation or reflect family situations where domestic violence is a real and ongoing issue.

18. Domestic violence is under-reported to the authorities and often undisclosed in proceedings. Many victims will not be able to receive legal aid unless they feel able to press for a finding of fact and obtain an injunction.

19. It cannot be assumed that the risk of domestic violence to and its impact on both vulnerable adults and children is gone after a period of twelve months.

20. Legal aid will not be available where domestic violence undertakings have been given under the Family Law Act 1996.

21. The greatest risk of domestic violence is at the point of separation.

22. It is possible that a mediator may assess a case as unsuitable for mediation due to domestic abuse issues that fall outside the narrow circumstances seen by the government as evidence justifying legal aid.

23. Victims of domestic abuse will be forced to cross-examine or be cross-examined by perpetrators in substantive children and finance matters. They should not have to represent themselves if mediation is unsuitable or unavailable.

Mediation and ignoring other alternatives to court

24. Mediation will be the only option available to families who qualify for legal aid. Continued funding for this highly valuable non-court option is welcome. But, although mediation will help some couples, it is not suitable for all. It requires both parties to voluntarily agree to take part.

25. The proposals fail to recognise the important role tailored legal advice plays in helping couples reach agreement. In order to negotiate sensibly and reach fair agreements, couples need a proper understanding of their legal rights. Family law is complicated and the provision of general information is not enough. Families need tailored legal advice specific to their particular circumstances, alongside any dispute resolution process. Yet under these proposals, funding for legal advice alongside mediation is limited to £150 per person with an additional one-off fee of £200 for the drafting of a court order setting out the terms of settlement in finance cases.

26. Where a matter is mediated, legal advice supports the parties. It assists and focuses the mediation process and safeguards against unfairness. It is worth noting that in Australia, family relationship centres were initially established and designed to actively discourage legal advice and input from lawyers – but this policy has now been reversed and increasingly lawyers attend dispute resolution sessions with their clients.

27. The proposals appear to ignore other solutions, including solicitor negotiation and collaborative law. If all cases are pushed into mediation, the success rate will worsen and the process will be undermined.

28. Legal aid should be available for family law cases where mediation fails or is deemed unsuitable by a mediator. Otherwise parents will have to leave issues unresolved, which is often not in the best interests of themselves or their children, or use the courts without legal representation.

Ignoring the Statutory Charge

29. Where money (other than maintenance) or property is recovered or preserved, the state recovers its legal aid funding through the Statutory Charge. The Government seeks to save about £19m in finance cases, but the Bill takes no account of the Statutory Charge’s contribution to off-setting family legal aid expenditure.

30. The Government is failing to take the opportunity to extend the Statutory Charge to cover cases referred to mediation as a contribution to the cost of mediation; or to extend the Statutory Charge to cover other family cases, whether or not they relate to assets, including for example injunction and private law children matters, where the legally aided person has assets such as a property with equity.

Costs to the taxpayer and chaos in the courts

31. The proposals risk endangering access to justice and creating a costly administrative burden whilst not making the savings sought by the Government.

32. Government figures suggest that 10% of those removed from the scope of private family law are then expected to secure funding under the new scheme for excluded cases.

33. Reducing family legal aid cases by about 50% will lead to more people representing themselves in family courts (litigants in person). Lawyers and judiciary members fear that courts will grind to a halt and the administrative costs of the court service will inevitably increase.

34. The Ministry of Justice acknowledges the lack of evidence on the impact of litigants in person on the justice system and the impact on litigants themselves. It is simply not known whether more couples will leave issues unresolved, make agreements between themselves or will represent themselves in court. Research into the costs and consequences of litigants in person is urgently needed.

35. The cuts risk a long-term impact on wider society. Research is required to identify costs that will transfer to other state-funded services as people forced to work through the difficulties of separation on their own develop other difficulties such as mental health issues.

Telephone gateway – impact on ethnic minorities, young people, women

36. The Government is still considering whether remaining family legal aid will only be accessed through a mandatory single telephone gateway. If this is implemented, an operator will decide whether to refer the client to a second-tier specialist service or whether the client needs face-to-face advice. Otherwise, clients will not be able to approach a face-to-face service directly.

37. This change could have a disproportionate impact on ethnic minorities, young people and women. More research and consultation is needed.

38. Research shows that social groups D and E are the least likely to access telephone advice. Many people who are eligible for legal aid are socially excluded and on low incomes, and cannot afford 0845 lines.

39. Many legal advice providers are well integrated with their local communities, resulting in complimentary referral systems. The telephone gateway may remove incentives for local commitment.

40. The Government is suggesting that the telephone gateway operator will decide on suitability for mediation. This is inappropriate; trained professionals should carry out mediation assessments.

Lack of access to family legal aid providers

41. Currently 90% of family law cases are resolved out of court. Family lawyers play a key role in this.

42. Some people need information and advice to persuade them that litigation is not the answer for them. Many of those who make more formal arrangements do so through the help of family lawyers who are skilled in guiding couples through separation and often help them seek alternatives to court.

43. Yet this successful approach is under threat. With legal aid work increasingly uneconomical, the changes in the Bill could be the final nail in the coffin for many legal aid providers, leaving too few to help the small number of people still eligible.

Payments for legal services in divorce proceedings

44. The Bill amends the law to give the court powers to make orders in divorce and civil partnership proceedings for payments to be made by one party to another for the purposes of paying for legal services. This provision is welcome but is not a suitable alternative to family legal aid, especially in cases where both parties are economically deprived or there is no liquid asset.

45. Furthermore, there will be no funding for the financially vulnerable party to obtain advice on how to make an application for a payment in addition to paying for the court fee.

Our recommendations

46. Make legal aid available for representation in private family law proceedings where a competent mediator determines that mediation is unsuitable or mediation is unsuccessful, including so that an individual at risk of abuse is not refused both mediation and legal aid for representation.

47. Make legal aid available for collaborative family law (as well as for mediation) to help couples to resolve their family matters on divorce or separation without recourse to the family courts, recognizing the range of dispute resolution which can help parents and couples.

48. Revisit the domestic abuse proposals, ensure that they do not increase the obstacles faced by victims of domestic abuse seeking help and ensure that victims are able to obtain legal aid for early advice and intervention.

49. Make legal aid available to obtain an emergency order to prevent the abduction of a child within the United Kingdom as well as international abductions.

50. Make legal aid available so people can make an application for the new interim lump sum, or periodical payments, from the other party for securing legal representation in finance proceedings on divorce or dissolution of a civil partnership.

About Resolution

51. Resolution is an association of 6,000 family lawyer and associate members abide by a Code of Practice that emphasises a constructive approach to family problems and encourages solutions that take into account the needs of the whole family, and in particular, the best interests of children. Resolution also works for improvements to the family justice system.

52. Around two thirds of our members undertake legal aid work. Our members work in around 1,500 firms who form the bulk of family legal aid contract holders in England and Wales.

53. We fully support mediation and all other out-of-court methods of resolving family disputes. Alternative dispute resolution is a key pillar of our beliefs. We offer training and expert accreditation in both mediation and collaborative law.

July 2011

Prepared 20th July 2011